y  V.    / 


^/k, 


A  MANUAL 


COURTS-MARTIAL, 

COURTS  OF  INQUIRY,  and 
RETIRING  BOARDS, 

AND  OF  OTHER 

Procedure  under  Military  Law. 


Revised  in  the  Judge-Advocate  General's  Office,  and  published 
by  authority  of  the  Secretary  of  War, 


USE  IN  THE  ARMY  OF  THE  UNITED  STATES. 


REVISED  EDmoisr,  lOOl. 


WASHINGTON: 

GOVERNMENT   PRINTING   OFFICE. 

1902. 


/Jo/ 

DOCUMENTI 
DEPT. 


War  Department, 

Document  No.  llfi. 
Office  of  the  Judge-Advocate  General. 


ABBREVIATIONS. 

A.  R. — United  States  Army  Regulations  of  190L 
A.  W. — Articles  of  War. 
R.  S.— Revised  Statutes. 


(2) 


War  Department, 
Washington,  March  16,  1901. 
The  Manual  for  Courts-Martial,  Courts  of  Inquiry, 
and  Retiring  Boards,  and  of  other  Procedure  under 
Military  Law,  prepared  by  direction  of  the  Secretary 
of  War  for  use  in  the  Army  of  the  United  States,  is 
approved,  and  will  be  published  for  the  information 
and  guidance  of  all  concerned. 

Elihu  Root, 

Secretary  of  War. 

(3) 


934159 


Digitized  by  the  Internet  Arcinive 

in  2007  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/courtsmartialmanOOunitrich 


A  MANUAL  FOR  COURTS-MARTIAL,  COURTS  OF 
L^QUIRY,  Am  RETIRING  J^RDS,  AND 
OF  OTHER  PROCEDURE  UNDER 
MILITARY  LAW.,   . 


INTRODUCTIONS  f     I  ] '  V ' l  ['l 


MILITARY  JURISDICTION. 

Sec.  I.  Military  Jurisdiction  is  of  four  kinds : 

1.  Military  Law;  which  is  the  legal  system  that  reg- 
ulates the  government  of  the  military  establishment. 
It  is  a  branch  of  the  municipal  law,  and  in  the  United 
States  derives  its  existence  from  special  constitutional 
grants  of  power. 

2.  The  Law  of  Hostile  Occupation  (Military  Govern- 
ment) ;  that  is,  military  poWer  exercised  by  a  belliger- 
ent by  virtue  of  his  occupation  of  an  enemy's  territory, 
over  such  territory  and  its  inhabitants.  This  belongs 
to  the  Law  of  War  and  therefore  to  the  Law  of  Nations. 
When  a  conquered  territory  is  ceded  to  the  conqueror, 
military  government  continues  until  civil  goverament 
is  established  by  the  new  sovereign. 

3.  Martial  Law  at  Home  (or,  as  a  domestic  fact) ;  by 
which  is  meant,  military  power  exercised  in  time  of 
war,  insurrection,  or  rebellion,  in  parts  of  the  country 
retaining  their  allegiance,  and  over  persons  and  things 
not  ordinarily  subjected  to  it. 

4.  Martial  Law  applied  to  the  Army ;  that  is,  mili- 
tary power  extending  in  time  of  war,  insurrection,  or 
rebellion  over  persons  in  the  military  service,  as  to  obli- 
gations arising  out  of  such  emergency  and  not  falling 
within  the  domain  of  military  law,  nor  otherwise  regu- 
lated by  law. 

(5) 


6  ARREST   AND   CONFINEMENT. 

The  last  two  divisions  are  applications  of  the  doctrine 
of  necessity  to  a  condition  of  war.  They  spring  from 
the  right  of  national  self-preservation. 

Sec.  II.  The  Source  op  Military  Jurisdiction  is 
the  Constitution ;  the  specific  provisions  relating  to  it 
being  found  in  the  powers  granted  to  Congress,  in  the 
authority  vested  in  the  President,  and  in  a  provision  of 
the  Fifth  Amendment. 

'  2.  Military  Law  is  derived  from  both  Written  and 
JJnicritten  SonvGes. 

The  Written  Sources  are  the  Articles  of  War,  adopted 
as  a  part  of  the  Revised  Statutes  of  the  United  States 
in  1874  and  since  amended  in  some  particulars;  other 
statutory  enactments  relating  to  the  military  service ; 
the  Army  Regulations ;  and  general  and  special  orders, 
and  decisions  promulgated  by  the  War  Dei^artment  and 
by  department,  post,  and  other  commanders. 

The  Umvritten  Source  is  the  "custom  of  war,"  con- 
sisting of  the  customs  of  the  service  both  in  peace  and 
in  war. 

Sec.  III.  Military  Tribunals  are  of  three  kinds,  viz : 

1.  Courts-Martial  (including  summary  courts),  for 
the  trial  of  offenders  against  military  law. 

2.  Courts  of  Inquiry,  for  examining  transactions  of, 
or  accusations  or  imputations  against,  officers  or  sol- 
diers. 

3.  Military  Commissions,  for  the  trial  of  offenders 
against  the  laws  of  war  and  under  martial  law  founded 
in  necessity. 

ARREST  AND  CO:N^nNEMENT  BEFORE  TRIAL. i 

Sec.  I.  Arrest  of  Officers. — "Officers  charged  with 
crime  shall  be  arrested  and  confined  in  their  barracks, 
quarters,  or  tents,  and  deprived  of  their  swords  by  the 
commanding  officer."-^ 

1  Omission  of  arrest  does  not  affect  the  jurisdiction  of  a  court. 
a65thA.  W. 


ARREST   AND   CONFINEMENT.  7 

2.  "Commanding  officers  only  have  power  to  place 
officers  in  arrest,  except  as  provided  in  the  24th  Article 
of  War.  An  arrest  may  be  ordered  by  the  command- 
ing officer,  in  person  or  through  his  stafif  officer,  orally 
or  in  writing."* 

B.  "An  officer  arrested  will  repair  at  once  to  his  tent 
or  quarters  and  there  remain  until  more  extended 
limits  have  been  granted  by  the  commanding  officer, 
on  written  application.  Close  confinement  will  not  be 
enforced  except  in  cases  of  a  serious  nature. "  ^ 

4.  "An  officer  in  arrest  will  not  wear  a  sword  nor 
visit  officially  his  commanding  or  other  superior  officer, 
unless  directed  to  do  so.  His  applications  and  requests 
of  every  nature  will  be  made  in  writing.  "^ 

5.  "Officers  will  not  be  placed  in  arrest  for  light 
offenses.  For  these  the  censure  of  the  commanding 
officer  will  generally  answer  the  purpose  of  discipline. 
Whenever  a  commanding  officer  places  an  officer  in 
aiTest  and  releases  him  without  preferring  charges,  he 
will  make  a  written  report  of  his  action  to  the  depart- 
ment commander,  stating  the  cause.  The  department 
commander,  if  he  thinks  the  occasion  requires,  will  call 
on  the  officer  arrested  for  any  explanation  he  may  desire 
to  make,  and  take  such  other  action  as  he  may  think 
necessary,  forwarding  the  papers  to  the  Adjutant  Gen- 
eral of  the  Army  for  file  with  the  officer's  record,  or  for 
further  action. "  ^ 

6.  "A  medical  officer,  charged  with  the  commission 
of  an  offense,  need  not  be  placed  in  arrest  until  the 
court  martial  for  his  trial  convenes  if  the  service  would 
be  inconvenienced  thereby,  unless  the  charge  is  of  a 
flagrant  character."^ 

7.  ' '  When  an  officer  is  put  in  arrest  for  the  purpose 
of  trial,  except  at  remote  military  posts  or  stations,  the 
officer  by  whose  order  he  is  arrested  shall  see  that  a 
copy  of  the  charges  on  which  he  is  to  be  tried  is  served 

'  Par.  908,  A.  R.  »W.,  1002.  6  Id.,  1001. 

«  Id.,  999.  ■•  Id.,  1000. 


8  ARREST   AND    CONFINEMENT. 

upon  him  within  eight  days  after  his  arrest,  and  that  he 
is  brought  to  trial  within  ten  days  thereafter,  unless  the 
necessities  of  the  seryice  i^revent  such  trial ;  and  then 
he  shall  be  brought  to  trial  within  thirty  days  after  the 
expiration  of  said  ten  days.  If  a  copy  of  the  charges  be 
not  served,  or  the'  arrested  officer  be  not  brought  to 
trial,  as  herein  required,  the  arrest  shall  cease.  But 
officers  released  from  arrest,  under  the  provisions  of  this 
article,  may  be  tried,  whenever  the  exigencies  of  the 
service  shall  permit,  within  twelve  months  after  such 
release  from  arrest."^ 

Sec.  II.  Arrest  and  Confinement  of  Soldiers. 

1.  Noncommissioned  officers  against  whom  charges 
may  be  preferred  for  trial  will  be  placed  in  arrest  in 
their  barracks  or  quarters.  They  will  not  be  confined 
in  the  guardhouse  in  company  with  privates,  except  in 
aggravated  cases  or  where  escape  is  feared.- 

2.  Noncommissioned  officers  in  arrest  will  not  be  re- 
quired to  perform  any  duty  in  which  they  may  be  called 
upon  to  exercise  command.  Noncommissioned  officers 
in  confinement  will  not  be  sent  out  to  work  with  prison- 
ers under  sentence. 

3.  Privates  against  whom  charges  may  be  preferred 
for  trial  by  summary  court  will  not  be  confined  in  the 
guardhouse,  but  will  be  placed  in  arrest  in  quarters, 
before  and  during  trial  and  while  awaiting  sentence, 
except  when  in  particular  cases  restraint  may  be 
necessary.  3 

4.  Privates  against  whom  charges  may  be  preferred 
for  trial  by  general  court-martial  will  be  confined  in  the 
guardhouse  before  and  during  trial.  While  awaiting 
trial  and  sentence,  or  undergoing  sentence,  they  will,  if 
practicable,  be  kept  apart  from  privates  confined  for 
minor  offenses  or  by  sentence  of  an  inferior  court."* 

1  7l8t  A.  w. 

2  Pars.  1006  and  10.35,  A.  R.  As  to  placing  soldiers  in  irons,  see  page  05, 
par.  3,  jtost. 

3  Par.  10S5,  A.  R.  *  Id.,  1008. 


ARREST   AND    CONFINEMENT.  9 

5.  Privates  in  confinement  awaiting  trial  will  not  be 
sent  to  work  with  i^risoners  undergoing  sentence  if  it 
can  be  avoided ;  but  may,  in  the  discretion  of  the  com- 
manding officer,  be  required  to  attend  drills  or  be  sent 
to  work  during  the  usual  working  hours  under  charge 
of  a  special  sentinel. ' 

6.  Privates  in  arrest  may,  in  the  discretion  of  the 
commanding  officer,  be  required  to  attend  parades, 
inspections,  drills,  school,  or  other  military  duties  and 
to  assist  in  policing  in  and  around  their  barracks. 

7.  Except  as  provided  in  the  24th  Article  of  War,  or 
when  restraint  is  necessary,  no  soldier  will  be  confined 
without  the  order  of  an  officer,  who  shall  previously 
inquire  into  his  offense.  Confinement  without  trial  as 
a  punishment  for  an  offense  is  forbidden.  An  officer 
authorizing  the  arrest  or  confinement  of  a  soldier  will, 
as  soon  as  practicable,  report  the  fact  to  his  company  or 
detachment  commander."^ 

Sec.  III.  General  Provisions  Relating  to  the 
Arrest  of  Officers  and  Soldiers. 

1.  "No  *  *  *  officer  commanding  a  guard  shall 
refuse  to  receive  or  keep  any  prisoner  committed  to  his 
charge  by  an  officer  belonging  to  the  forces  of  the 
United  States ;  provided  the  officer  committing  shall,  at 
the  same  time,  deliver  an  account  in  writing,  signed  by 
himself,  of  the  crime  charged  against  the  prisoner.""^ 
' '  Every  officer  to  whose  charge  a  prisoner  is  committed 
shall,  within  twenty-four  hours  after  such  commitment, 
or  as  soon  as  he  is  relieved  from  his  guard,  report  in 
writing,^  to  the  commanding  officer,  the  name  of  such 
prisoner,  the  crime  charged  against  him,  and  the  name 
of  the  officer  committing  him    *    *    *     "^ 

2.  '  'All  persons  under  guard  without  written  charges 
will  be  released  by  the  old  officer  of  the  day  at  guard 

1  Par.  1008,  A.  R,  2  m.^  lOOC  and  1007.  3  67tli  A.  W. 

^This  report  is  usually  written  in  the  "Guard  Report  Book,"  and  pre- 
sented to  tlie  comniandir  g  officer  by  the  old  officer  of  the  day  at  guard 
mounting. 

5  68th  A.  W. 


10  ARREST    AND   CONFINEMENT. 

mounting,  unless  specific  orders  to  the  contrary  have 
been  given,  in  each  case,  by  the  commanding  officer."^ 
No  officer  or  soldier  put  in  arrest  or  confinement  will  be 
so  restrained  more  than  eight  days,  or  until  such  time 
as  a  court-martial  can  be  assembled. - 

1  Par.  1009,  A.  R.  2  70th  A.  W. 


COURTS-MARTIAL. 


COMPOSITION. 


1.  Courts-Martial  are  composed  of  commissioned 
officers  only.  All  officers  of  the  Regular  Army,  except 
those  on  the  retired  list  ^  and  professors  of  the  United 
States  Military  Academy,  are  eligible  for  detail  for  the 
trial  of  offenders  belonging  to  the  Regular  Army;^  but 
no  officer  will  be  detailed  for  the  trial  of  an  officer 
superior  to  himself  in  rank  when  it  can  be  avoided.  ^ 

2.  Officers  of  the  Regular  Army  and  of  the  Marine 
Corps,  detached  for  service  with  the  Army  by  order  of 
the  President,  may  be  associated  together  for  the  trial 
of  offenders  belonging  to  either  of  these  bodies.^  In 
like  manner  regular  officers  may  be  associated  with 
volunteer  officers  for  the  trial  of  regulars  or  volunteers. 
But  with  these  exceptions  officers  of  the  Regular  Army 
are  not  competent  to  sit  on  courts  for  the  trial  of 
offenders  belonging  to  other  forces.^ 

3.  Officers  of  volunteers  and  of  the  militia,  when  the 
latter  are  called  into  the  service  of  the  United  States, 
are  competent  to  act  as  members  of  courts  for  the  trial 
of  regular  officers  or  soldiers.  Militia  officers  are  also 
competent  to  sit  upon  courts  for  the  trial  of  volunteers. 
But  courts-martial  for  the  trial  of  militia  must  be  com- 
posed of  militia  officers  only.*^ 

4.  In  the  United  States  military  service,  the  follow- 
ing-named courts  -  martial  are  authorized:  1st,  the 
"General  Court-martial;"  3d,  the  "Summary  Court;" 

»  Sec.  1259,  R.  S. 

2  An  "acting  assistant  surgeon,"  being  a  civilian,  is  not  eligible,  and 

chaplains  are  not  in  practice  detailed  as  members  of  general  courts-msirtial. 

»  79th  A.  W.  ■♦TSth  id.  «  77th  id.  «  Sec.  1658,  R.  S. 

(11) 


12  CONSTITrTION. 

3d,  the   "Garrison  Court-martial;"  4th,   the  "Regi- 
mental Court-martial." 

5.  The  General  Court-martial,  being  the  most  impor- 
tant, will  be  first  considered — the  others,  ordinarily 
called  "Inferior  Courts-martial,"  in  the  order  named. 
But,  as  all  courts-martial  have  much  in  common  in 
regard  to  their  jurisdiction,  procedure,  punishment, 
etc. ,  the  text  may,  as  a  rule,  be  regarded  as  ajiposite  to 
all,  unless  the  general  court  is  specially  mentioned. 
Exceptions  in  regard  to  jurisdiction,  etc. ,  will  be  made 
as  each  inferior  court  is  considered. 

6.  A  General  Court-martial  may  consist  of  any  num- 
ber of  members  from  five  to  thirteen,  inclusive,  and  a 
judge -advocate ;  but  of  not  less  than  thirteen  members 
when  this  number  can  be  convened  without  manifest 
injury  to  the  serviced  When,  in  the  course  of  a  trial, 
the  court  is  reduced  in  number  by  reason  of  absence, 
challenge,  or  the  relieving  of  members,  it  may  proceed 
with  business  so  long  as  five  members  remain.  When 
from  any  cause  a  general  court  is  reduced  below  the 
minimum,  five,  the  remaining  members  should  direct 
the  jiidge-advocate  to  report  the  fact  to  the  convening 
authority,  and  await  further  orders.  In  such  a  case, 
if  the  trial  has  not  been  entered  upon,  new  members 
may  be  added  ;  but  if  any  testimony  has  been  taken, 
the  court  should  preferably  be  dissolved  and  a  new  one 
ordered.^ 

CONSTITUTION^. 

1.  The  President  is  empowered  to  institute  general 
courts -martial — 1st,  as  Commander-in-Chief  of  the 
Army,  under  the  Constitution ;  2d,  in  the  special  con- 
tingency mentioned  in  the  next  paragraph ;  3d,  in  the 
particular  cases  provided  for  by  section  1230,  Revised 
Statutes. 

*  75th  A.  W.  "A  decision  of  the  appointing  authority  as  to  the  number 
that  can  he  assembled  without  injury  to  the  service  is  conclusive."  (Par. 
1018,  A.  R.) 

*For  form  of  order  for  general  court,  see  page  137,  post. 


JURISDICTION.  13 

2.  Any  general  officer  commanding  an  army,  a  teiTi- 
torial  division,  or  a  department,  or  colonel  commanding 
a  separate  department,  may  appoint  a  general  court- 
martial  whenever  necessary.  ^  But  when  any  such  com- 
mander is  the  accuser  or  prosecutor  of  any  q^cer  under 
his  command  the  court  must  be  appointed  by  the  Presi- 
dent.- In  time  of  war  this  power  is  extended  to  the 
commander  of  a  tactical  division  or  of  a  separate  bri- 
gade ;  but  in  this  case  when  such  commander  is  the 
accuser  of  any  persoji  under  his  command  the  court 
must  be  appointed  by  the  7iext  higher  commander.^ 

3.  The  Superintendent  of  the  United  States  Military 
Academy  has  power  to  convene  general  courts-martial 
for  the  trial  of  cadets,  subject  to  the  same  limitations 
and  conditions  now  existing  as  to  other  courts-martial.'* 

4.  The  officer  who  appoints  a  court-martial — general, 
garrison,  or  regimental — may  dissolve  it,  and  control 
its  existence,  but  not  the  subject-matter  of  its  delibera- 
tions. In  the  absence  of  special  orders  or  legislation  to 
that  effect,  personal  presence  within  the  territorial 
limits  of  his  department  is  not  essential  to  the  validity 
of  commands  given  by  a  department  commander  to  be 
executed  within  such  limits,  such,  for  instance,  as  the 
appointment  of  a  court-martial.  ^ 

JURISDICTION. 

Sec.  I.  Courts-martial  derive  their  existence  solely 
from  acts  of  Congress,  and  their  jurisdiction  is  limited 
to  the  purpose  of  the  maintenance  of  military  disci- 
pline. Their  decisions,  within  their  jurisdiction,  are 
not  reviewable  by  any  courts  whatever. '^  The  30th 
Article  of  War  relates  to  an  exceptional  procedure,  not 
necessary  to  consider  in  this  connection. 

'  See  par.  4,  this  article. 

'72d  A.W.     As  to  when  a  commander  is  "  tlio  accuser  or  prosecutor," 
seo  Digest  Opin.  J.  A   G.,  g§  187,  188. 
3  73d  A.  W.  s See  par.  213,  A.  R. 

*  Sec.  1326,  R.  S.  «  See  Digest  Opin.  J.  A.  G.,  g  992,  and  note. 


14  JURISDICTION. 

2.  Courts-martial  have  exclusive  jurisdiction  to  try 
for  acts  constituting  military  offenses  only,  and  also 
jurisdiction  to  try  for  acts  which,  besides  constituting 
military  offenses,  are  civil  crimes.  In  the  latter  case 
the  military  ordinarily  gives  precedence  to  the  civil 
court,  but  when  an  officer  or  a  soldier  has  been 
arraigned  before  a  duly  constituted  court-martial  for 
an  offense  triable  by  it,  the  jurisdiction  thus  attached 
can  not  be  set  aside  by  the  process  of  a  State  court.  ^ 

3.  ^.s'  regards  persons,  courts-martial  have  jurisdic- 
tion, at  all  times  and  in  all  places,  over  officers  and  sol- 
diers of  any  troops,  whether  militia  or  others,  mustered 
arid  in  pay  of  the  United  States,  ^  over  officers  and  sol- 
diers of  the  marines,  when  detached  for  service  with 
the  Army,=^  over  persons  who  fraudulently  enlist  in  the 
service  of  the  United  States  and  receive  pay  or  allow- 
*ance  thereunder,^  and  over  offenders,  in  general,  to 
whom,  owing  to  the  commission  of  a  crime,  military 
jurisdiction  has  legally  attached — as  by  an  -arrest  or 
confinement — before  their  discharge  from  service. 
This  jurisdiction  over  persons  in  the  military  service 
covers  all  military  offenses  committed  by  them, 
whether  within  or  beyond  the  territorial  jurisdiction 
of  the  United  States.  Military  offenses  are  not  terri- 
torial. 

4.  As  a  rule,  military  jurisdiction  ends  when  a  sol- 
dier is  discharged.  The  present  exceptions  to  this  rule 
are,  discharged  officers  and  soldiers  guilty  of  frauds 
against  the  United  States  under  the  60th  Article  of  War, 
and  discharged  officers  granted  trial   after   summary 

'  See  authorities  cited  in  note  2,  page  295.  Digest  Opin.  J.  A.  G. 

2  64th  A.  W.     This  inchides  retired  officers  and  soldiers. 

3Sec.  1G21,  R.  S. 

4Aot  of  July  27,  1892;  see  G.  0.  57,  A.  G.  0.,  1892.  A  fraudulent  enlist- 
vienl  is  an  enlistment  procured  by  means  of  a  willful  misrepresentation  in 
regard  to  a  qualification  or  disqualification  for  enlistment,  or  by  inten- 
tional concealment  of  a  disqualification,  which  has  had  the  effect  of  causing 
the  enlistment  of  a  man  not  qualified  to  be  a  soldier,  and  who  but  for  such 
false  representation  or  concealment  would  have  been  rejected. 


JURISDICTION.  15 

dismissal,  under  section  1230,  Revised  Statutes,  and 
general  prisoners.  ^ 

5,  In  time  of  war  this  jurisdiction  extends  to  "  all  re- 
tainers to  the  camp  and  all  persons  serving  with  the 
armies  of  the  United  States  in  the  field,  though  not 
enlisted  soldiers;"^  to  any  person  who  "relieves  the 
enemy  with  money,  victuals,  or  ammunition,  or  know- 
ingly harbors  or  protects  an  enemy ;"  ^  or  who  ' '  holds  cor- 
respondence with,  or  gives  intelligence  to,  the  enemy, 
either  directly  or  indirectly  ;"^  and  to  spies.  ^ 

%.  As  regards  offenses,  the  jurisdiction  embraces,  the 
offenses  specifically  defined  in  the  Articles  of  War,  or 
included  under  the  general  terms  of  the  61st  and  62d 
articles;  the  offense  of  military  persons  trading  with 
the  enemy,  "^  and  that  of  fraudulently  enlisting  in  the 
service  of  the  United  States.'' 

7.  A  court  having  once  duly  assumed  jurisdiction  of 
an  offense  and  person,  can  not,  by  any  wrongful  act  of 
the  accused,  be  ousted  of  its  authority  or  discharged 
from  its  duty  to  proceed  fully  to  try  and  determine, 
according  to  law  and  its  oath.  Thus  the  fact  that, 
pending  the  trial,  the  accused  has  escaped  from  mili- 
tary custody,  furnishes  no  ground  for  not  proceeding  to 
a  finding,  and,  in  the  event  of  conviction,  to  a  sentence, 
in  the  case;  and  the  court  may  and  should  find  and 
sentence  as  in  any  other  case. 

Sec.  II.  General  Courts-Martial  have,  as  regards  per- 
sons and  with  reference  to  other  courts-martial,  exclusive 
jurisdiction  over  officers,**  cadets,^  and  "candidates  for 
promotion. "  '**    Over  enlisted  men,  other  than  candidates 

'  Act  approved  June  18,  1898,  page  121,  'post. 
263d  A.  W. 
3  45th  A.  W. 
M6tli  A.  W. 
6  Sec.  1343,  K.  S. 

6  Sees.  6306  and  5313,  R.  S. 

7  Act  of  July  27,  1892;  see  G.  0.  67,  A.  G.  C,  1892.  For  definition  of 
fraudulent  enlistment,  see  page  14,  note  4,  ante. 

8  83d  A.  W.  9  Sec.  1326,  R.  S.  'o  Act  of  July  30,  1892. 


16  CHARGES  AND   SPECIFICATIONS. 

for  promotion,  and  general  prisoners,  they  have  concur- 
rent jurisdiction  with  the  inferior  courts  in  cases  cogni 
zable  by  the  latter.  ^ 

3.  As  i'egards  offenses,^  they  have  exclusive  jurisdic- 
tion over  all  offenses  punishable  capitally,^  and  over 
those  set  forth  in  the  58th  Article,  when  committed  in 
time  of  war.  Over  other  offenses  they  have  concurrent 
jurisdiction  with  the  inferior  courts;  but  all  offenses 
for  which  the  limit  of  punishment  is  in  excess  of  the 
limits  of  the  punishing  power  of  an  inferior  court,  as 
well  as  all  serious  noncapital  offenses  for  which  limits 
of  punishment  have  not  been  prescribed,  will,  when 
practicable,  be  tried  by  general  court-martial. 

CHARGES  AND  SPECIFICATIONS. 

Sec.  1.  A  military  charge  corresponds  to  a  civil  in- 
dictment. It  consists  of  two  parts — the  technical 
''charge"  which  designates  the  alleged  offense  in  gen- 
eral terms,  and  the  "  sj^ecification,"  which  sets  forth 
the  facts  constituting  the  same.  The  requisite  of  a 
charge  is,  that  it  shall  be  laid  under  the  proper  Article 
of  War  or  other  statute ;  of  a  specification,  that  it  shall 
set  forth  facts  sufficient  to  constitute  the  particular 
offense.  Under  the  general  term  "charges,"  any  num- 
ber of  technical  charges  and  their  specifications  may  be 
included. 

2.  When  an  Article  of  War  relates  to  but  one  kind  of 
offense,  the  charge  may  be  laid  as  a  violation  of  such 
article.  If  the  offense  has  a  technical  name  or  descrip- 
tion known  to  the  service,  such  as  "Desertion,"  "Ab- 
sence-without-leave,"  "Sleeping  on  post,"  etc.,  it  may 

iPar.  1033,  A.R.,  prescribes  that  noncommissioned  officers  above  the  rank 
of  corporal  will  not,  if  they  object  thereto,  bo  brought  to  trial  before  regi- 
mental, garrison,  or  summary  courts-martial,  without  the  authority  of  the 
officer  competent  to  order  their  trial  by  general  court-martial.  See  also  act 
approved  June  18,  1898,  page  120,  post. 

2  Military  offenses,  wheresoever  committed,  are  punishable  under  the 
Articles  of  War  ;  see  page  14,  par.  3,  ante. 

3  83d  A.  W. 


CHARGES   AND    SPECIFICATIONS.  17 

be  charged  simply  as  such,  or,  preferably,  also  laid 
under  the  appropriate  Article  of  War.  A  charge  laid 
under  the  61st  Article  of  War  will  properly  describe 
the  offense  as  "conduct  unbecoming  an  officer  and  a 
gentleman."  A  charge  laid  under  the  62d  Article  of 
War  may  give  the  name  or  description  of  the  offense, 
alleging  it  to  be  "in  violation  of  the  62d  Article  of 
War,"  or  may  describe  it  as  "conduct  to  the  prejudice 
of  good  order  and  military  discipline." 

3.  When  an  offense  is  specifically  provided  for  in  an 
Article  of  War  the  charge  will  be  laid  under  that  article 
and  not  under  the  62d  Article,  Especially  is  it  wrong  to 
lay  a  charge  under  the  62d  Article  when  the  offense  falls 
under  an  article  which  prescribes  a  fixed  punishment. 

4.  In  case  of  an  absence  from  any  appointed  parade, 
drill,  or  other  exercise,  but  not  from  the  limits  of  the 
post,  the  charge  should  be  laid  under  the  33d  Article  of 
War;  in  case  of  absence  from  the  post,  or  command, 
under  the  32d;  and  sometimes,  in  order  that  the  court 
may  be  able  to  judge  of  the  full  nature  of  the  offense, 
under  both,  as  when  some  duty,  other  than  an  ordinary 
roll  call,  is  neglected;  e.  g.,  when  a  soldier,  regularly 
detailed  for  guard,  absents  himself  not  only  from  guard 
mounting  but  also  from  his  post. 

5.  Soldiers  found  drunk  on  any  guard,  party,  or  other 
duty  after  having  actually  entered  upon  such  duty,  but 
not  until  then  discovered  to  be  drunk,  should  be 
charged  with  violation  of  the  38th  Article  of  War. 

6.  Accused  persons  will  not  be  joined  in  the  same 
charge,  nor  tried  on  joint  charges,  unless  for  concert 
of  action  in  an  offense.  To  warrant  the  joining  of 
several  persons  in  the  same  charge,  the  offense  must  be 
such  as  requires  for  its  commission  a  combination  and 
must  have  been  committed  in  concert,  in  pursuance  of 
a  common  intent. 

7.  As  to  whether  an  act  which  is  a  civil  crime  is  also 
a  military  offense  no  rule  can  be  laid  down  which  will 
cover  all  cases,  for  the  reason  that  what  may  be  a 


18  CHARGES   AND   SPECIFICATIONS. 

military  offense  under  certain  circumstances  may  lose 
that  character  under  others.  For  instance,  larceny  by 
a  soldier  from  a  civilian  is  not  always  a  military  crime, 
but  it  may  become  such  in  consequence  of  the  particu- 
lar features,  surroundings,  or  locality  of  the  act.  What 
these  may  be  can  not  be  anticipated  with  a  sweeping 
rule,  comi^rehensive  enough  to  provide  for  every  possi- 
ble conjunction  of  circumstances.  Each  case  must  be 
considered  on  its  own  facts.  But  if  the  act  be  com- 
mitted on  a  military  reservation,  or  other  ground  occu- 
liied  by  the  army,  or  in  its  neighborhood,  so  as  to  be  in 
the  constructive  presence  of  the  army;  or  if  committed 
while  on  duty,  i)articularly  if  the  injury  be  to  a  mem- 
ber of  the  community  whom  it  is  the  offender's  duty  to 
protect ;  or  if  committed  in  the  presence  of  other  sol- 
diers, or  while  in  uniform ;  or  if  the  offender  use  hi? 
military  position,  or  that  of  another,  for  the  purpose  of 
intimidation  or  other  unlawful  influence  or  object- 
such  facts  would  be  sufficient  to  make  it  prejudicial  to 
military  discipline  within  the  meaning  of  the  62d 
Article  of  War. 

Sec.  II,  The  specification  need  not  possess  the  tech- 
nical nicety  of  an  indictment  at  common  law.  A  bald 
statement  of  facts  is  sufficient,  provided  the  legal 
offense  itself  be  distinctly  and  accurately  described. ' 

2.  In  order  that  the  accused  may  be  left  in  no  doubt 
as  to  the  iDrecise  offense  with  which  he  is  charged,  the 
time  and  place  of  the  commission  of  the  offense  should 
be  stated  as  accurately  as  possible.  When  any  doubt 
exists  as  to  the  exact  date  and  locality,  it  may  be  stated 
that  the  act  specified  was  committed  "on  or  about"  a 
certain  time,  or  "at  or  near"  a  given  place.  In  pre- 
paring several  specifications  under  one  charge,  the  time 
and  place  of  the  alleged  offense  should  be  given  in  each. 

Sec.  III.  Many  of  the  Articles  of  War  include  two  ol 
more  offenses.     When  a  charge  is  to  be  laid  under  such 

•Dig.  Opin.  J.  A.  G.,  gG95,  and  note. 


CHARGES   AND   SPECIFICATIONS.  19 

an  article,  the  particular  offense  committed  should  be 
stated.  A  specification  in  an  alternative  form  is  bad 
pleading.  For  example,  it  is  wrong  to  allege  ' '  selling 
or  through  neglect  losing,"  in  violation  of  the  17th 
Article  of  War. 

3.  The  prosecution  is  at  liberty  to  charge  an  act 
under  two  or  more  forms,  when  it  is  doubtful  under 
which  it  will  more  properly  be  brought  by  the  testi- 
mony. In  the  military  practice,  the  accused  is  not 
entitled  to  call  upon  the  prosecution  to  elect  under 
which  charge  it  will  proceed  in  such,  or  indeed  in  any, 
case. 

Sec.  IV.  "Commanding  officers  will,  before  forward- 
ing charges,  personally  investigate  them,  and,  by 
indorsement  on  the  charges,  will  certify  that  they  have 
made  such  investigation,  and  whether,  in  their  opinion, 
the  charges  can  be  sustained."  ^ 

2.  Charges  against  an  enlisted  man  forwarded  to  the 
authority  ordering  a  general  court-martial,  or  sub- 
mitted to  a  summary,  garrison,  or  regimental  court, 
must  be  accompanied  by  the  proper  evidence  of  previ- 
ous convictions.-^  "General  courts -martial  will  con- 
sider only  such  evidence  of  previous  convictions  as  is 
referred  to  them  by  the  convening  authority.^" 

3.  Charges  against  an  enlisted  man  forwarded  to  the 
authority  competent  to  order  a  general  court-martial 
for  his  trial  will  also  be  accompanied  by  a  statement  of 
service  ^  in  accordance  with  the  form  given  on  page  13G, 
post.  In  case  of  a  deserter  the  surgeon's  report  required 
by  paragraph  132,  Army  Regulations,  will  also  be  for- 
warded. ^ 

Sec.  V.  After  charges  have  been  fonnally  referred  by 
competent  authority  to  a  court-martial  for  trial,  the 
court  is  not  authorized,  in  its  discretion  and  upon  its 
own  motion,  to  strike  out  a  charge  or  sjiecification,  or 

»  Tiir.  1029,  A.  R.  *  See  page  60,  par.  6,  post. 

2  Id.,  1038  ;  see  page  45,  par.  2,  post.  ^  For  form,  see  page  136,  post. 

^Id. 


20  ORGANIZATION. 

to  direct  or  permit  the  judge -advocate  to  drop,  or  with- 
draw, such  charge  or  specification,  or  to  enter  a  nolle 
prosequi  as  to  the  same.  For  such  action  the  authority 
of  the  convening  officer  is  requisite.  Where,  however, 
by  a  special  plea  or  objection,  an  i^ime  is  made  by  the 
accused  as  to  the  sufficiency  of  any  charge  and  specifica- 
tion, the  court,  without  referring  the  question  to  the 
convening  officer,  is  empowered  to  sustain  the  plea  or 
objection,  and  quash  or  strike  out  the  charge. 

ADDITIONAL.  CHARGES. 

1.  After  the  accused  has  been  arraigned  upon  certain 
charges,  has  pleaded  thereto,  and  the  trial  on  the  same 
has  been  entered  upon,  new  and  additional  charges, 
which  the  accused  has  had  no  notice  to  defend,  can  not 
be  introduced  or  the  accused  required  to  plead  thereto. 
Such  charges  should  be  made  the  subject  of  a  separate 
trial,  upon  which  the  accused  may  be  enabled  properly 
to  exercise  the  right  of  challenge  to  the  members  of  the 
court  and  effectively  to  plead  and  defend. 

ORGANIZATION. 

1.  The  authority  appointing  a  court-martial  designates 
the  place  for  holding  the  court,  the  hQur  of  meeting, 
the  members  of  the  court,  and  a  judge-advocate.' 

2.  Courts  will  be  assembled  at  posts  or  stations  where 
trial  or  examination  will  be  attended  with  the  least 

.  expense.  They  will,  as  far  as  practicable,  hold  their 
sessions  so  as  to  interfere  least  with  ordinary  routine 
duties. 

3.  A  general  court-martial  assembles,  at  its  first  ses- 
sion in  accordance  with  the  order  convening  it ;  there- 
after, according  to  adjournment.  The  members  wear 
full-dress  uniform  with  their  swords,  except  in  inclem- 
ent weather,  when  the  president  of  the  court  may 
authorize  undress  uniforms ;  the  judge-advocate  appears 
in  undress  uniform  without  the  sword ;  the  accused,  if 

'  Pars.  1018  and  1019,  A.  B. 


THE   MEMBERS.  21 

an  officer  or  noncommissioned  officer,  appears  in  full 
dress ;  if  a  private,  in  undress,  and  is  without  arms  in 
any  case.  Military  witnesses  wear  full  dress,  with 
their  swords  or  side  arms.  The  accused  should  not  be 
brought  before  the  court  in  irons,  unless  there  are  good 
reasons  to  believe  that  he  will  attempt  to  escape  or 
conduct  himself  in  a  violent  manner ;  but  the  fact  that 
a  prisoner  has  been  tried  in  irons  can  not,  in  any  case, 
affect  the  validity  of  the  proceedings. 

4.  When  the  court  is  ready  to  proceed,  the  members 
take  seats  at  a  table  provided  for  their  use ;  the  presi- 
dent sits  at  the  head  of  the  table  and  the  other  members 
at  his  right  and  left  alternately,  according  to  rank. 
The  judge -advocate  sits  at  the  foot  of  the  table  or  at  a 
separate  table ;  the  accused  and  his  counsel  at  a  table 
provided  for  them  and  placed  in  a  convenient  position. 
A  witness,  when  testifying,  is  seated  near  the  judge- 
advocate,  and  the  reporter  at  a  table  placed  near  the 
witness'  chair. 

5.  The  order  of  procedure  is  given  in  detail  in  the 
"form  for  record  of  a  general  court-martial,"  page  137, 
post.  During  the  reading  of  the  order  convening  the 
court  and  the  arraignment,  the  judge -advocate  and  the 
accused  should  stand;  while  the  court  and  the  judge- 
advocate  are  being  sworn,  all  stand ;  when  a  reporter,  an 
interpreter,  or  a  witness  is  being  sworn,  he  and  the 
judge-advocate  should  stand ;  and  when  the  judge-advo- 
cate, the  accused,  or  his  counsel  addresses  the  court,  he 
should  rise. 

6.  The  organization  of  the  court  is  complete  on  the 
swearing  in  of  the  members  and  the  judge-advocate. 

THE  MEMBERS. 

1.  Members  of  a  court-martial  will  be  named  in  the 
order  appointing  it,  in  accordance  with  their  rank. 
They  will  sit  according  to  rank  as  announced,  and  will 
'  *  behave  with  decency  and  calmness." '    A  court-martial 

»Par.  1018,  A.  R.,  and  the  87th  A.  W. 


22  THE   PRESIDENT. 

has  no  power  to  punish  its  members,  but  a  member  is 
liable  for  improper  conduct  as  for  any  other  offense 
against  military  discipline.  Improper  words  used  by  a 
member  should  be  taken  down  in  writing,  and  any  dis- 
orderly conduct  reported  to  the  appointing  authority.  ^ 
Reading  of  newspapers  or  other  evidence  of  inatten- 
tion by  members  of  a  court-martial  during  its  sessions 
constitutes  a  violation  of  duty  to  the  prejudice  of  good 
order  and  military  discipline.  It  is  the  duty  of  the 
president  of  the  court  to  admonish  against  such  inatten- 
tion, and  charges  may  be  preferred  against  a  member 
who  does  not  heed  the  admonition. 

2.  ' '  Members  of  a  court-martial,  in  giving  their  votes, 
shall  begin  with  the  youngest  in. commission.'"^  In  all 
deliberations  the  law  secures  the  equality  of  the 
members. 

3.  When  a  member  is  prevented  from  attending  a 
session  of  the  court  he  will  communicate  the  cause  to 
the  judge-advocate,  so  that  the  same  may  be  entered  in 
the  record  of  proceedings.  If  he  fails  to  do  so  it  is  the 
duty  of  the  president  at  the  next  meeting  of  the  court 
to  call  upon  him  for  such  explanation  as  he  may  desire 
to  make. 

4.  A  member  stationed  at  the  place  where  a  court- 
martial  sits  is  liable  to  duty  with  his  command  during 
adjournment  of  the  court  from  day  to  day.^ 

THE  PRESIDENT. 

1.  "A  president  of  the  court  will  not  be  announced. 
The  officer  highest  in  rank  present  will  act  as  presi- 
dent. "■*  Besides  his  duties  and  privileges  as  a  member, 
the  president  is  the  organ  of  the  court  to  maintain 
order  and  conduct  its  business.     He  speaks  and  acts  for 

'  Par.  1021,  A.  R. 

*95th  A.  W.  A  tie  vote  on  the  findings  is  a  vote  of  "not  guilty;"  a  tie 
vote  on  a  proposed  sentence  or  on  any  objection  or  motion  is  a  vote  in  the 
negative.  The  sentence  is  not  adopted,  and  the  objection  or  motion  is  not 
sustained. 

8Par.  ini9,  A,  R.  4 Id.,  1020. 


THE    JUDGE-ADVOCATE.     •  23 

the  court  in  every  instance  where  a  rule  of  action  has 
been  prescribed  by  law,  regulations,  or  its  own  resolu- 
tion. He  administers  the  oath  to  the  judge-advocate 
and  authenticates  by  his  signature  all  acts,  orders,  and 
proceedings  of  the  court  requiring  it. 

THE  JUDGE- ADVOCATE. 

1.  "The  judge-advocate  *  *  shall  prosecute  in  the 
name  of  the  United  States,  but  when  the  prisoner  has 
made  his  plea  he  shall  so  far  consider  himself  counsel 
for  the  prisoner  as  to  object  to  any  leading  question  to 
any  of  the  witnesses,  and  to  any  question  to  the  pris- 
oner, the  answer  to  which  might  tend  to  criminate 
himself. "  ^ 

2.  Before  the  court  assembles  the  judge -advocate  should 
note  and  report  any  irregularity  in  the  order  convening 
the  court  and  see  that  the  charges  are  technically  and 
correctly  drawn.  He  may  ordinarily  correct  obvious 
mistakes  of  form,  or  slight  errors  in  name,  dates, 
amounts,  etc. ,  but  he  should  not,  without  the  authority 
of  the  convening  officer,  make  substantial  amendments 
in  the  allegations,  or — least  of  all — reject  or  withdraw 
a  charge  or  specification,  or  enter  a  nolle  prosequi  as  to 
the  same,  or  substitute  a  new  and  distinct  charge  for 
one  transmitted  to  him  for  trial. 

3.  The  judge-advocate  should  acquaint  the  prisoner 
with  the  accusations  against  him,  inform  him  of  his  right 
to  have  counsel, '■*  and  to  testify  in  his  own  behalf,  and 
furnish  him  with  a  copy  of  the  charges,  if  desired.  He 
may  ask  a  prisoner  how  he  intends  to  plead ;  but,  when 
the  accused  is  an  enlisted  man,  he  shoald  in  no  case  try 
to  induce  him  to  plead  guilty  or  leave  him  to  infer  that 
if  he  does  so  his  punishment  will  be  lighter.  "When  the 
accused  determines  to  plead  guilty  the  judge -advocate 
should  advise  him  of  his  right  to  introduce  evidence  in 
explanation  of  his  offense,  and  should  assist  him  in  secur- 
ing it ;  and  if  the  charge  be  desertion,  the  judge-advocate 

>  90th  A.  W.  »  See  page  25,  post. 


24  THE  JUDGE-ADVOCATE. 

should  satisfy  himself  that  the  accused,  understands 
that  such  plea  will  be  an  admission  of  his  unauthorized 
absence  with  the  intention  of  not  returning. 

4.  The  judge-advocate  should  also,  before  the  court 
assembles,  obtain  a  suitable  room  for  the  court,  see  that 
it  is  in  order,  procure  the  requisite  stationery,  summon 
necessary  witnesses,'  make  a  preliminary  examination 
of  the  latter,  and  as  far  as  possible  systematize  his  plans 
for  conducting  the  case. 

5.  During  the  trial  the  judge-advocate  conducts  the 
case  for  the  Government.  He  executes  all  orders  of 
the  court;  reads  the  convening  order  to  the  accused; 
swears  the  members  of  the  court,  the  reporter,  inter- 
preter, and  all  witnesses;  arraigns  the  accused;  ex- 
amines witnesses;  keeps,  or  superintends  the  keeping 
of,  a  complete  and  accurate  record  of  the  proceedings,  ^ 
and  affixes  his  signature  to  each  day's  proceedings.^ 
In  con j notion  with  the  president  of  the  court  he 
authenticates  the  record  by  his  signature,^  and  at  the 
end  of  the  trial  transmits  the  same  to  the  convening 
authority.^  Whenever,  by  reason  of  the  death  or  dis- 
ability of  the  judge-advocate  occurring  after  the  court 
has  decided  on  the  sentence,  the  record  can  not  be 
authenticated  by  his  signature,  it  must  show  that  it 
has  been  formally  approved  by  the  court  and  must  be 
authenticated  by  the  signature  of  the  president.^ 

6.  While  the  court  is  in  open  session  the  judge-advo- 
cate should  respectfully  call  the  attention  of  the  court 
to  any  illegalities  in  its  action,  and  to  any  irregularities 
in  its  proceedings.  He  should  act  as  legal  adviser  of 
the  court  so  far  as  to  give  his  opinion  upon  any  point 
of  law  arising  during  the  trial,  when  it  is  asked  for  by 
the  court,  but  not  otherwise. 

*  See  page  33,  post. 

*  For  form  for  record,  see  page  137,  -post. 
s  Par.  1055,  A.  R. 

<  Id.,  1057.     The  proceedings  of  all  courts  appointed  by  the  President 
will  be  sent  direct  to  the  Secretary  of  War.    (Par.  993,  A.  R.) 
8  Id.,  1055. 


COUNSEL.  25 

7.  When  a  court  sits  in  closed  session  the  judge- 
advocate  will  withdraw,  and  when  his  legal  advice  or 
assistance  is  required,  it  will  be  obtained  in  open  court. ' 

8.  Throughout  the  trial  the  judge-advocate  should  do 
his  utmost  to  present  the  whole  truth  of  the  matter  in 
question.  He  should  oppose  every  attempt  to  suppress 
facts  or  to  torture  them  into  false  shapes,  to  the  end 
that  the  evidence  may  so  exhibit  the  case  that  the  court 
may  render  impartial  justice. 

9.  The  judge-advocate  should  regard  his  duty  toward 
the  accused  as  not  strictly  limited  by  the  90th  Article 
of  War,  and  when  the  latter  is  ignorant  and  without 
counsel  the  judge-advocate  should  take  care  that  he 
does  not  suffer  upon  the  trial  from  any  ignorance  or 
misconception  of  his  legal  rights,  and  has  full  oppor- 
tunity to  interpose  such  pleas  and  make  such  defense 
as  may  best  bring  out  the  facts,  the  merits,  or  the 
extenuating  circumstances  of  his  case. 

10.  Whenever  the  court  adjourns  to  meet  at  the  call 
of  the  president,  the  judge-advocate  will  notify  the 
members  of  the  time  designated  by  the  president  for 
reassembling. 

COUNSEL. 

1.  The  commanding  officer  of  a  post  where  a  general 
court-martial  is  convened  will,  at  the  request  of  any 
prisoner  who  is  to  be  arraigned,  detail  a  suitable  officer 
as  counsel  for  the  defense.  Officers  directly  responsible 
for  the  discipline  of  organizations  serving  at  the  post 
and  the  trial  officer  of  the  summary  court  are  not 
eligible  for  this  duty.  If  there  be  no  such  officer 
available  for  detail  the  fact  will  be  reported  to  the 
authority  appointing  the  court  for  his  action.  ^ 

2.  An  officer  detailed  as  counsel  for  a  soldier  before 
a  general  court-martial  should  guard  the  interests  of 

>  Par.  1022,  A.  R. 

2  Id.,  1037.  This  privilege  of  being  represented  by  counsel  does  not 
apply  to  cases  before  inferior  courts. 


26  REPORTER. 

the  accused  by  all  honorable  and  legitimate  means 
known  to  the  law,  so  far  as  they  are  not  inconsistent 
with  military  relations.'  He  should  not  obstruct  the 
proceedings  with  frivolous  or  manifestly  useless  ob- 
jections. 

3.  If  the  judge-advocate  keeps  the  record  in  longhand 
the  counsel  will  be  required  to  reduce  his  questions  and 
arguments  to  writing;  but  if  the  court  has  a  steno- 
graphic reporter  the  counsel  will  be  allowed  to  question 
witnesses  and  address  the  court  orally. 

REPORTER. 

1.  "The  employment  of  a  stenographic  reporter, 
under  section  1203,  Revised  Statutes,  is  authorized  for 
general  courts  only,  and  in  cases  where  the  convening 
authority  considers  it  necessary.  The  convening  au- 
thority may  also,  when  necessary,  authorize  the  detail 
of  an  enlisted  man  to  assist  the  judge-advocate  of  a 
general  court  in  preparing  the  record.  "^ 

2.  "When  a  reporter  is  employed  under  section  1203, 
Revised  Statutes,  he  shall  be  paid  upon  the  certificate 
of  the  judge -advocate  not  to  exceed  one  dollar  an  hour 
for  the  time  occupied  in  court  by  himself  or  a  competent 
assistant  necessarily  employed  for  him  by  the  judge- 
advocate,  and  fifteen  cents  per  100  words  for  the  first 
and  five  cents  per  100  words  for  each  additional  copy  of 
the  transcript  of  notes  and  of  exhibits  copied ;  and  in 
case  the  court  is  held  more  than  ten  miles  from  the 
place  of  employment  of  himself  and  assistants  they  shall 
each  be  allowed  mileage  over  the  shortest  usually  trav- 
eled route  at  the  rate  of  eight  cents  per  mile  going  to 
the  place  of  holding  the  court  and  three  dollars  a  day 
for  expenses  while  necessarily  kept  by  the  judge-advo- 
cate away  from  the  place  of  employment. "  ^ 

3.  Reporters  will  be  paid  by  the  Pay  Department,  on 
the  certificate  of  the  judge-advocate. 

1  Par.  1037,  A.  B.  «  jj.,  1062.  a  la.,  1063. 


INTERPRETER — CHALLENGE.       27 

4.  "No  person  in  the  military  or  civil  service  of  the 
Government  can  lawfully  receive  extra  compensation 
for  clerical  duties  performed  for  a  military  court.  "^ 

INTERPRETER. 

1.  "  Interpreters  to  courts-martial  are  paid  by  the  Pay 
Department  upon  the  certificate  of  the  judge-advocate 
that  they  were  employed  by  order  of  the  court.  They 
will  be  allowed  the  pay  and  allowances  of  civilian  wit- 


CTIALLENGE. 

1.  "Members  of  a  court-martial  maybe  challenged 
by  a  prisoner;  but  only  for  cause  stated  to  the  court. 
The  court  shall  determine  the  relevancy  and  validity 
thereof,  and  shall  not  receive  a  challenge  to  more  than 
one  member  at  a  time."^ 

2.  A  positive  declaration  by  the  challenged  member 
that  he  is  not  prejudiced  against  the  accused,  nor  inter- 
ested in  the  case,  is  ordinarily  satisfactory  to  the  accused, 
and,  in  the  absence  of  material  evidence  in  support  of 
the  objection,  will  justify  the  court  in  overruling  it.  If, 
however,  the  statement  is  unsatisfactory,  or  the  member 
makes  no  response,  the  accused  may  offer  testimony  in 
support  of  his  objection  or  may  subject  the  challenged 
member  to  an  examination  by  interrogatories  in  the 
same  manner  that  a  juror  is  examined  in  criminal  courts. 
If  the  accused  desires  that  the  challenged  member  be 
put  on  his  voir  dire,  the  judge-advocate  will  administer 
the  oath  before  the  court  is  sworn. 

3.  Courts  should  be  liberal  in  passing  upon  challenges, 
but  they  will  not  entertain  an  objection  that  is  not  spe- 
cific, nor  one  upon  the  mere  assertion  of  the  accused,  if 
it  is  not  admitted  by  the  challenged  member.  A  chal- 
lenge upon  the  ground,  admitted  or  proven,  that  a 

J  Par.,  1064,  A.  R. 

2  Id.,  1005.    As  to  pay,  etc.,  of  civilian  witness,  see  page  40,  post. 
^  88th  A.  W.     This  Article  of  War  authorizes  the  exercise  of  the  right  of 
jhalleuge  before  all  courts  except  summary  courts. 


28  OATHS. 

member  preferred  the  charges  and  is  a  material  witness 
in  support  thereof,  or  that  he  has  investigated  the 
charges  and  expressed  the  opinion  that  they  can  be 
established,  should  be  sustained  by  the  court. 

4.  The  court  of  itself  can  not  excuse  a  member  in  the 
absence  of  a  challenge.  A  member,  not  challenged, 
who  thinks  himself  disqualified,  can  only  be  relieved 
by  application  to  the  convening  authority.  No  member 
who  has  been  absent  during  the  taking  of  evidence  shall 
thereafter  take  i)art  in  the  trial ;  but  this  x^rovision  shall 
not  be  construed  as  invalidating  the  proceedings  ot 
courts-martial  when  not  complied  with  and  no  objec- 
tion is  made,  but  is  to  be  regarded  as  a  requirement 
which  should  always  be  complied  with  when  practi- 
cable. Especially  should  a  member  who  has  been  absent 
during  an  important  part  of  the  proceedings  not  be  per- 
mitted to  resume  his  seat. 

5.  The  judge -advocate  is  not  challengeable;  but  in 
case  of  i)ersonal  interest  in  the  trial  he  should  apply  to 
the  convening  authority  to  be  relieved. 

OATHS. 

Of  Members. — The  judge  advocate  shall  administer  to 
each  member  of  the  court,  before  proceeding  upon  any 
trial,  the  following  oath,  which  shall  also  be  taken  by 
all  members  of  regimental  and  garrison  courts-martial : ' 

"You,  A  B,  do  swear  that  you  will  well  and  truly  try 
and  determine,  according  to  evidence,  the  matter  now 
before  you,  between  the  United  States  of  America  and 
the  prisoner  to  be  tried,  and  that  you  will  duly  admin- 
ister justice,  without  partiality,  favor,  or  affection, 
according  to  the  provisions  of  the  rules  and  articles  for 
the  government  of  the  armies  of  the  United  States,  and 
if  any  doubt  should  arise,  not  explained  by  said  articles, 
then  according  to  your  conscience,  the  best  of  your 

'  Whenever  the  same  court-martial  tries  more  tlian  one  prisoner  on  sepa- 
rate and  distinct  charges,  the  court  will  be  sworn  at  the  commencement  of 
each  trial. 


OATHS.  29 

understanding,  and  the  custom  of  war  in  like  cases; 
and  you  do  further  swear  that  you  will  not  divulge  the 
sentence  of  the  court  until  it  shall  be  published  by  the 
proper  authority,  except  to  the  judge-advocate;  neither 
will  you  disclose  or  discover  the  vote  or  opinion  of  any 
particular  member  of  the  court-martial,  unless  required 
to  give  evidence  thereof,  as  a  witness,  by  a  court  of 
justice,  in  a  due  course  of  law.     So  help  you  God."' 

2.  Of  the  Judge- Advocate. — When  the  oath  has  been 
administered  to  the  members  of  a  court-martial,  the 
president  of  the  court  shall  administer  to  the  judge - 
advocate,  or  person  officiating  as  such,  an  oath  in  the 
following  form :  ^ 

"You,  A  B,  do  swear  that  you  will  not  disclose  or  dis- 
cover the  vote  or  opinion  of  any  particular  member  of 
the  court-martial,  unless  required  to  give  evidence 
thereof,  as  a  witness,  by  a  court  of  justice,  in  due  course 
of  law ;  nor  divulge  the  sentence  of  the  court  to  any  but 
the  proper  authority,  until  it  shall  be  duly  disclosed  by 
the  same.     So  help  you  God."=^ 

3.  Of  Witness. — All  persons  who  give  evidence  before 
a  court  martial  shall  be  examined  on  oath,  or  affirma- 
tion, in  the  following  form : 

"You  swear  (or  affirm)  that  the  evidence  you  shall 
give,  in  the  case  now  in  hearing,  shall  be  the  truth,  the 
whole  truth,  and  nothing  but  the  truth.  So  help  you 
God."'' 

4.  Of  Reporter.—"  You  swear  that  you  will  faithfully 
perform  the  duties  of  reporter  to  this  court.  So  help 
you  God."^ 

5.  Of  Interpreter. — "You  swear  that  you  will  truly 
interpret  in  the  case  now  in  hearing.  So  help  you 
God." 

1  84th  A.  W. 

2  During  the  administration  of  the  oaths  to  the  court  and  the  judge-advo- 
cate, all  members  of  the  court,  the  judge-advocate,  and  the  accused  stand. 

3  85th  A.  W. 

4  92d  id. 

*  The  reporter  must  be  sworn  in  each  case. 


30  POSTPONEMENT. 

6.  Voir  Dire. — "  You  swear  that  you  will  true  answers 
make  to  questions  touching  your  comi^etency  as  a  mem- 
ber of  the  court  (or  witness)  in  this  case.  So  help  you 
God." 

7.  Judge-advocates  of  departments  and  of  courts- 
martial,  and  the  trial  officers  of  summary  courts,  are 
authorized  to  administer  oaths  for  the  purposes  of  mili- 
tary justice,  and  for  other  purposes  of  military  admin- 
istration. ' 

8.  "Any  officer  or  clerk  of  any  of  the  departments 
lawfully  detailed  to  investigate  frauds  on,  or  attempts  to 
defraud,  the  Government,  or  any  irregularity  or  mis- 
conduct of  any  officer  or  agent  of  the  United  States,  and 
any  officer  of  the  Army  detailed  to  conduct  an  investi- 
gation, and  the  recorder,  and  if  there  be  none  the  pre- 
siding officer  of  any  military  board  appointed  for  such 
purpose,  shall  have  authority  to  administer  an  oath  to 
any  witness  attending  to  testify  or  depose  in  the  course 
of  such  investigation. "  ^ 

POSTPONEMElNrT. 

1.  If  postponement  is  necessary,  application  therefor 
should  ijroperly  be  made  to  the  convening  authority 
before  the  accused  is  arraigned.  The  court  may  ' '  for 
reasonable  cause,  grant  a  continuance  to  either  party, 
for  such  time,  and  as  often  as  may  appear  to  be  just: 
Provided,  That  if  the  prisoner  be  in  close  confinement, 
the  trial  shall  not  be  delayed  for  a  period  longer  than 
sixty  days. "  ^ 

2.  Upon  application  by  the  accused  for  postponement 
of  trial  because  of  the  absence  of  a  witness,  it  should 
distinctly  appear,  on  his  oath,  that  the  witness  is  mate- 
rial, and  why,  and  that  the  accused  has  used  due  dili- 
gence to  procure  his  attendance,  and  has  reasonable 
ground  to  believe,  and  does  believe,  that  he  will  be  able 

«  Act  of  July  27,  1S92  ;  see  G.  0.  57,  A. CO.,  1892. 
.*Scc.  183,  R.  S.,  as  amended  by  act  of  March  2, 1901,  p.  123,  pos/. 
3  93d  A.W. 


ARRAIGNMENT  — PLEAS.  31 

to  procure  such  attendance  within  a  reasonable  time 
stated. 

3.  Application  for  extended  delay  will,  when  practi- 
cable, be  made  to  the  authority  appointing  the  court. 
When  made  to  the  court,  and  if,  in  the  opinion  of  the 
court,  it  is  well  founded,  it  will  be  referred  to  the  con- 
vening authority  to  decide  whether  the  court  shall  be 
adjourned  or  dissolved. 

ARRAIGNMENT. 

1.  The  court  being  organized,  and  both  parties  ready 
to  proceed,  the  judge-advocate  will  read  the  charges 
and  specifications,  separately  and  in  order,  to  the  ac- 
cused, and  ask  him  how  he  pleads  to  each — "  guilty,"  or 
"not  guilty."  The  order  pursued,  in  case  of  several 
charges  or  specifications,  will  be  to  arraign  on  the  first, 
second,  etc.,  specifications  to  the  first  charge,  then  on 
the  first  charge,  and  so  on  with  the  rest.' 

PL.EAS. 

1.  Ordinarily  the  plea  of  the  accused  is  "guilty"  or 
"not  guilty  "  to  each  charge  and  specification ;  or,  guilty 
of  a  specification  excepting  certain  words,  and  of  the 
excepted  words  not  guilty ;  or,  as  when  charged  with  an 
offense  which  includes  a  lesser  one  of  kindred  degree, 
guilty  to  the  specification  except  certain  words,  substi- 
tuting therefor  certain  others,  and  to  the  charge  not 
guilty,  but  guilty  of  the  lesser  kindred  offense.  ^ 

2.  A  plea  of  guilty  does  not  necessarily  exclude  evi- 
dence. In  cases  of  discretionary  punishment,  ^  a  full 
knowledge  of  the  circumstances  attending  the  offense  is 
essential  to  the  court  in  measuring  the  punishment,  and 
to  the  convening  authority  in  acting  on  the  sentence. 
It  is,  therefore,  proper  for  the  court  to  take  evidence 
after  a  plea  of  guilty,  except  when  the  specification 

'  During  the  arraignment  tlie  judge-advocate  and  the  accused  stand. 
*  See  page  4;5,  par.  3,  post.  ^  g^e  j)age  45,  post. 


32  PLEAS. 

is  so  descriptive  as  to  disclose  all  the  circulnstances  of 
mitigation  or  aggravation. 

3.  In  all  cases  after  a  plea  of  guilty,  the  accused  will 
be  permitted  to  offer  evidence  in  mitigation  of  the 
offense  charged. 

4.  "When  testimony  is  heard  after  a  plea  of  "guilty," 
the  accused  may  cross-examine  the  witnesses,  produce 
evidence  to  rebut  their  testimony,  offer  evidence  as  to 
character,  and  address  the  court  in  extenuation  of  the 
offense  or  in  mitigation  of  punishment. 

5.  When  the  accused  jileads  "guilty"  and,  without 
any  evidence  being  introduced,  makes  a  statement  in- 
consistent with  his  plea,  the  statement  and  plea  will  be 
considered  together,  and  if  guilt  is  not  conclusively 
admitted,  the  court  will  direct  the  entry  of  a  plea  of 
"  not  guilty,"  and  proceed  to  try  the  case  on  the  general 
issue  thus  made. 

6.  If  the  prisoner,  from  obstinacy  or  deliberate  de 
sign,  stands  mute,  or  answers  foreign  to  the  puri^ose, 
the  court  will  proceed  to  trial  and  judgment  as  if  the 
prisoner  had  pleaded  " not  guilty."  ^ 

7.  Instead  of  pleading  to  the  general  issue,  the  ac- 
cused may  plead  in  bar  of  trial,^  either  to  the  jurisdic- 
tion, by  denying  the  legal  right  of  the  court  to  try  him, 
or  he  may  make  a  special  plea  to  any  specification,  pre- 
senting reasons  why  he  should  not  be  tried  on  it.  The 
burden  of  substantiating  such  pleas  rests  on  the  ac- 
cused. Both  sides  should  be  heard,  and  the  proceed- 
ings under  the  plea  recorded.  If  the  plea  in  bar  of 
trial  be  found  valid,  the  court  will  report  its  decision 
to  the  convening  authority  and  await  further  instruc- 
tions; if,  by  the  special  plea,  an  issue  is  made,  the 
court  is  empowered  to  sustain  or  overrule  the  plea;'' 
when  a  special  plea  is  made  and  overruled,  the  accused 
will  be  required  to  plead  to  the  general  issue. 

J  89th  A.  w. 

2  As  to  plea  of  autrefois  acquit  in  a  case  involving  both  a  civil  and  a  mili- 
tary offense,  see  Digest  Opin.  J.  A.  G.,  gg306,  1036,  and  notes. 
*  See  page  19,  Sec.  v,  ante;  also,  i  ago  145,  note  2,  post. 


ATTENDANCE    OF   WITNESSES.  33 

8.  A  second  enlistment  in  the  service  of  the  United 
States,  when  the  first  has  not  been  fulfilled,  is  not  void, 
but  voidable  at  the  option  of  the  United  States  only ;  so 
that  a  man  who,  whilst  serving  under  such  a  second 
enlistment,  commits  an  offense,  can  not  successfully 
plead  the  fraudulent  character  of  his  second  enlistment 
in  bar  of  trial.  Paragraph  145,  Army  Regulations,  re- 
lates to  soldiers  not  charged  with  crime  who  are  dis- 
covered to  be  deserters  from  the  Navy  or  Marine  Corps, 
and  does  not  interpose  any  obstacle  to  trial  by  court- 
martial  for  offenses  committed  while  in  the  military 
service. 

9.  The  statute  of  limitation  (103d  Article  of  War)  is 
not  prohibitory  as  to  jurisdiction,  ^  but  is  properly  a 
matter  of  defense,  which,  to  be  effective,  must  be 
pleaded  and  proved,  or,  in  some  express  manner,  taken 
advantage  of  on  the  evidence. 

ATTENDANCE  OF  WITNESSES. 

Sec.  I.  "  The  judge -advocate  will  summon  the  neces- 
sary witnesses  for  the  trial,  but  will  not  summon  wit- 
nesses at  the  expense  of  the  Government  without  the 
order  of  the  court  unless  satisfied  that  their  testimony 
is  material  and  necessary,"  ^ 

2.  The  accused  is,  in  general,  entitled  to  have  all  the 
material  witnesses  for  his  defense  summoned ;  except 
when  their  testimony  would  be  merely  cumulative,  and 
evidently  add  nothing  to  the  strength  of  his  case.  As 
far  as  possible,  he  should  be  allowed  a  full  and  free  de- 
fense, as  the  least  denial  to  him  of  any  proper  facility, 
opportunity,  or  latitude  for  it  may  serve  to  defeat  the 
ends  of  justice. 

Sec,  II,  To  procure  the  attendance  of  witnesses  sta- 
tioned or  residing  within  the  State,  Territory,  or  Dis- 
trict in  which  the  court  is  ordered  to  sit,  and  to  compel 

>  See  Digest  Opin.  J,  A.  G.,  g  320,  and  note.  2  Par.  1023,  A,  R. 

12915 3 


34  ATTENDANCE   OF   WITNESSES. 

them  to  testify,  etc.,  the  judge-advocate  will  proceed  as 
follows  : 

1.  Judge-advocates  of  courts-martial  will,  whenever 
it  is  possible,  send  subpoenas  through  military  channels.  ^ 
In  case  a  witness  duly  subpoenaed  before  a  general 
court-martial  refuses  to  appear  or  qualify  as  a  witness, 
or  to  testify  or  produce  documentary  evidence,  as 
required  by  law,  he  will  at  once  be  tendered  or  paid  by 
the  nearest  paymaster  his  fees  and  mileage,  and  will 
thereupon  be  again  called  upon  to  comply  with  the 
requirements  of  the  law.^ 

2.  If  the  desired  witness  is  a  civilian,  living  near  the 
post  where  the  court  is  convened,  duplicate  subpoenas  ^ 
will  be  prepared,  one  of  which  will  be  served  upon  the 
witness  by  the  judge-advocate  or  by  any  person  in- 
structed by  him ;  if  the  residence  of  the  witness  wanted 
is  not  near  the  post,  but  still  within  the  State,  etc. ,  the 
judge-advocate  will  send  the  duplicate  subpoenas  to  the 
convening  authority,  requesting  service  of  the  same. 

3.  Service  is  made,  under  court-martial  practice,  by  a 
personal  delivery  of  the  subpoena  to  the  witness ;  and 
proof  of  service  by  returning  the  duplicate  original  to 
the  judge-advocate,  indorsed  as  explained  in  the  form 
published  on  page  160,  post.  Any  person  instructed  by 
the  judge -advocate  or  post  commander  may  serve  the 
subpoena,'*  but  the  service  must  he  personal. 

4.  Should  a  witness  fail  to  appear  ^  after  due  and  rea- 
sonable notice,  the  judge -advocate  has  power  to  issue 
the  like  process  to  compel  him  to  appear  and  testify 
which  courts  of  criminal  jurisdiction  within  the  State, 
Territory,  or  District  where  such  court  is  convened  may 

>Par.  1024,  A.  R. 

2  See  act  of  Congress  approved  March  2,  1901,  page  122,  post,  and  par. 
1067,  A.  R. 

3  For  forms,  see  pages  159  and  160,  post. 

4  Par.  1023,  A.  R. 

fi  Such  witness  may  also  be  prosecuted  under  act  of  Congress  approved 
March  2,  1901;  see  page  122,  post. 


ATTENDANCE    OF   WITNESSES.  35 

lawfully  issue.  ^  This  power  also  includes  the  power  to 
execute  such  process  through  an  officer,  who  shall  be 
specially  charged  with  its  execution,  ^ 

5.  Whenever  it  becomes  necessary  to  enforce  the  at- 
tendance of  a  witness,  the  judge-advocate  will  issue  a 
warrant  of  attachment  ^  directing  and  delivering  it  for 
execution  to  an  officer  designated  by  the  department 
commander  for  the  purpose.  He  will  also  deliver  to 
this  officer  the  subpoena,  indorsed  with  affidavit  of 
service  (to  be  returned  when  the  warrant  is  executed), 
and  a  certified  copy  of  the  order  appointing  the  court- 
martial. 

6.  In  executing  such  process  it  is  lawful  to  use  only 
such  force  as  may  be  necessary  to  bring  the  witness 
before  the  court.  Whenever  force  is  actually  required, 
the  post  commander  nearest  witness's  residence  will 
furnish  a  military  detail  sufficient  to  execute  the  pro- 
cess.-* 

7.  If,  in  executing  this  legal  process,  the  officer  de- 
tailed for  that  purpose  should  be  served  with  a  writ  of 
habeas  corpus  from  any  United  States  court,  or  by  a 
United  States  judge,  for  the  production  of  the  witness, 
the  writ  will  be  promptly  obeyed  and  "the  person 
alleged  to  be  illegally  restrained  of  his  liberty  will  be 
taken  before  the  court  from  which  the  writ  has  issued, 
and  a  return  made  setting  forth  the  reasons  for  his 
restraint.  The  officer  upon  whom  such  a  writ  is  served 
will  at  once  report,  by  telegraph,  the  fact  of  such  service 
direct  to  the  Adjutant  General  of  the  Army  and  to  the 
commanding  general  of  the  department."^ 

8.  If,  however,  the  writ  of  habeas  corpus  is  issued  by 
any  State  court  (or  a  State  judge)  it  will  be  the  officer's 
duty  to  make  respectful  return,  in  writing,  informing 
the  court  that  he  holds  the  person  named  in  the  writ -by 

•Sec.  1202,  R.S. 

212  Opiiis.  Atty.  Gen.,  501. 

3  For  form,  see  page  IGl,  post. 

*  Par.  1026,  A.  R. 

6  Id.,  1075.     For  general  form  for  return,  see  page  168,  post. 


36  ATTENDANCE   OF   WITNESSES. 

authority  of  the  United  States  pursuant  to  a  warrant  of 
attachment  issued  under  section  1202  of  the  Revised 
Statutes  of  the  United  States  by  a  judge-advocate  of  a 
lawfully  convened  court-martial,  and  that  the  Supreme 
Court  of  the  United  States  has  decided  that  State  courts 
and  judges  are  without  jurisdiction  in' such  cases. ^ 

9.  After  having  made  the  above  return,  it  is  the  duty 
of  the  officer  to  obey  the  process  of  the  United  States, 
to  hold  the  prisoner  in  custody  under  it,  and  to  refuse 
obedience  to  the  mandate  or  process  of  any  other  gov- 
ernment. And,  consequently,  it  is  his  duty  not  to  take 
the  prisoner,  nor  suffer  him  to  be  taken,  before  a  State 
judge  or  court  upon  a  writ  of  habeas  corpus  issued 
under  State  authority.^ 

10.  "Every  person  not  belonging  to  the  Army  of  the 
United  States  who,  being  duly  subpoenaed  to  appear  as 
a  witness  before  a  general  court-martial  of  the  Army, 
willfully  neglects  or  refuses  to  appear,  or  refuses  to 
qualify  as  a  witness  or  to  testify  or  produce  documentary 
evidence  which  such  person  may  have  been  legally  sub- 
j)oenaed  to  produce,  shall  be  deemed  guilty  of  a  misde- 
meanor, for  which  such  person  shall  be  punished  on 
information  in  the  district  court  of  the  United  States ; 
and  it  shall  be  the  duty  of  the  United  States  district 
attorney,  on  the  certification  of  the  facts  to  him  by  the 
general  court-martial,  to  file  an  information  against 
and  prosecute  the  person  so  offending,  and  the  punish- ' 
ment  of  such  person,  on  conviction,  shall  be  a  fine  of 
not  more  than  five  hundred  dollars  or  imprisonment  not 
to  exceed  six  months,  or  both,  at  the  discretion  of  the 
court :  Provided,  That  this  shall  not  apply  to  persons 
residing  beyond  the  State,  Territory,  or  District  in 
which  such  general  court-martial  is  held,  and  that  the 
fees  of  such  witness,  and  his  mileage  at  the  rates  pro- 
vided for  witnesses  in  the  United  States  district  court 
for  said  State,  Territory,  or  District  shall  shall  be  duly 

'  Pars.  1073  and  1074,  A.  R.    For  form  for  return,  Bee  page  170,  post. 
*See  cases  cited  in  "  Form  B,"  page  170,  post. 


ATTENDANCE    OF   WITNESSES.  37 

paid  or  tendered  said  witness,  such  amounts  to  be  paid 
by  the  Pay  Department  of  the  Army  out  of  the  appro- 
I)riation  for  compensation  of  witnesses :  Provided,  That 
no  witness  shall  be  compelled  to  incriminate  himself  or 
to  answer  any  questions  which  may  tend  to  incriminate 
or  degrade  him,"' 

Sec.  III.  To  procure  the  testimony  of  witnesses  sta- 
tioned or  residing  without  the  State,  etc.,  the  following 
practice  will  he  observed: 

1.  A  writ  of  attachment  does  not  run  beyond  the 
State,  Territory,  or  District  in  which  the  court-martial 
sits.  The  testimony  of  civilian  witnesses  residing  be- 
yond 2  such  State,  Territory,  or  District  will  ordinarily 
be  taken  by  deposition  under  the  91st  Article  of  War; 
but  this  can  not  be  done  when  it  is  necessary  that  they 
should  be  confronted  with  the  accused.  In  such  cases 
their  testimony  can  only  be  taken  on  their  voluntarily 
appearing  before  the  court. 

The  testimony  of  military  witnesses  stationed  or  re- 
siding beyond  ^  the  State,  Territory,  or  District  in  which 
the  court  sits  will  also  ordinarily  be  taken  by  deposition. 

2.  The  method  of  procedure  to  obtain  a  deposition  ^^ 
is  as  follows : 

The  party,  prosecutor  or  defendant,  desiring  the  depo- 
sition, submits  to  the  court  a  list  of  interrogatories  to 
be  propounded  to  the  absent  witness ;  the  opposite  party 
then  prepares  and  submits  a  list  of  cross-interrogatories, 
a  reasonable  time  being  allowed  for  this  purpose ;  redi- 
rect and  recross-interrogatories  are  added,  if  desired; 
finally  the  court,  having  assented  to  the  interrogatories 
thus  submitted,  adds  such  as,  in  its  judgment,  may  be 
necessary  to  elucidate  the  whole  of  the  witness's  testi- 
mony. 

The  interrogatories  having  been  accepted  by  the  court, 
the. judge-advocate  will  prepare  duplicate  subpoenas" 

1  Act  of  Congress  approved  March  2,  1901,  sec.  1,  page  121,  post. 

2  See  page  162,  note  1,  post.  *  For  form,  see  page  159,  post. 
8  For  form,  see  page  162,  post. 


38  ATTENDANCE   OF  WITNESSES. 

requiring  the  witness  to  appear  in  person,  at  a  time  and 
place  to  be  fixed  by  the  officer,  military  or  civil,  who  is 
to  take  the  deposition.  If  the  name  of  this  officer  is 
not  known,  the  space  for  it  will  be  left  blank. 

The  judge-advocate  will  then  send  the  interrogatories 
and  subpoenas  to  the  convening  authority,  with  a  request 
that  the  deposition  be  secured. 

Depositions  may  also  be  taken  before  the  assembling 
of  the  court-martial,  on  interrogatories  and  cross-inter- 
rogatories or  reasonable  notice,  subject  to  exceptions 
when  read  in  court. 

3.  Judge-advocates  of  departments  and  of  courts- 
martial,  and  the  trial  officers  of  summary  courts,  are 
authorized  to  administer  oaths  and  take  depositions. ' 
If  none  of  these  officers  are  available,  any  other  army 
officer  may  be  designated  to  see  that  the  deposition  is 
properly  taken ;  -  but  the  oath  in  such  a  case  must  be 
administered  and  the  dex)Osition  authenticated  by  a  civil 
officer  empowered  by  law  to  administer  oaths  for  gen- 
eral purposes. 

4.  Upon  the  return  of  the  interrogatories  and  deposi- 
tion they  will  be  submitted  to  the  court  by  the  president 
or  judge-advocate.  The  papers  will  then  be  properly 
marked,  appended  to  the  record,  and  referred  to  in  the 
proceedings,  where  all  action  upon  the  subject  necessary 
for  the  information  of  the  reviewing  authority  will  be 
recorded. 

5.  Upon  the  receipt  of  the  deposition,  the  judge-advo- 
cate will  also  prepare  and  sign  the  ordinary  ' '  accounts 
for  a  civilian  witness,"  ^  substituting  for  the  usual  state- 
ment in  regard  to  attendance  before  the  court  a  state- 
ment that  he  duly  attended  as  a  witness  at  a  certain 

1  Sec.  4,  act  of  July  27,  1892;  see  G.  0.  57,  A.  G.  0.  1892. 

2  An  oflBcer  so  designated  will,  before  serving  the  subpoena,  complete  it  if 
necessary  by  inserting  the  name  and  official  designation  of  the  notary  (or 
other  official  having  authority  to  administer  the  oaths),  before  whom  it  is 
to  be  taken  and  the  date  on  which  and  place  where  it  is  proposed  to  take 
it.  When  the  deposition  has  been  duly  taken,  he  will  certify  to  this  fact 
and  transmit  it  to  the  president  of  the  court. 

'  For  form  see  page  1G4,  post. 


ATTENDANCE    OF   WITNESSES.  39 

time  and  place  and  duly  gave  his  deposition  before  a 
certain  official  named,  and  then  transmit  them  to  the 
witness  with  duplicate  copies  of  the  order  convening 
the  court.  The  period  of  attendance  can  be  ascertained 
from  the  deposition. 

6.  In  capital  cases  (1  e.,  those  in  which  the  offense  is 
punishable  by  death)/  or  in  cases  where  the  judge- 
advocate  can  certify  "that  the  interests  of  justice  de- 
mand that  the  witness  shall  testify  in  the  presence  of 
the  court, "  the  regular  subpoenas  will  be  made  out  by 
the  judge-advocate,  certified  to  as  above,  if  necessary, 
and  transmitted  to  the  department  commander,  with  a 
request  that  they  be  duly  forwarded  to  the  witness,  if 
an  officer,  or  to  the  nearest  post  commander  for  service, 
if  the  witness  is  an  enlisted  man  or  a  civilian. 

7.  "An  officer  or  enlisted  man  who  receives  a  sum- 
mons to  attend  as  a  witness  before  any  military  court, 
board,  civil  court,  or  other  tribunal  competent  to  issue 
subpoenas,  which  is  sitting  beyond  the  limits  of  the  de- 
partment where  he  is  serving,  will,  before  starting  to 
obey  the  summons,  forward  it  through  the  proper 
channel  to  his  department  commander,  that  necessary 
orders,  or  authority  to  obey  a  civil  process,  may  be 
given.  In  urgent  cases,  or  when  the  public  interest 
would  be  liable  to  suffer  by  delay,  a  post  commander 
may  authorize  immediate  departure,  reporting  his 
action  and  reasons  therefor  to  the  department  com- 
mander. "^ 

8.  "Officers  and  enlisted  men  reporting  as  witnesses 
before  a  civil  court  should  receive  from  the  civil 
authorities  the  necessary  expenses  incurred  in  travel 
and  attendance ;  neither  mileage  nor  travel  allowances 
will  be  paid  in  such  cases  by  the  War  Department. 
If,  however,  it  is  absolutely  necessary  to  furnish  them 
transportation  in  kind  to  enable  them  to  appear,  as 
witnesses  for  the  Government,  before  a  civil  court 

1  In  time  of  peace,  desertion  is  not  a  capital  offense. 
2Par.  1025,  A.  R. 


40  FEES   OF   WITNESSES. 

of  the  United  States,  an  account  of  such  expenditure, 
together  with  the  evidence  that  they  were  properly 
subpoenaed  and  did  attend  the  court,  will  be  forwarded 
to  the  War  Department  for  presentation  to  the  Depart- 
ment of  Justice.  Officers  providing  such  transporta- 
tion will  notify  the  court,  or  the  marshal  thereof,  that 
it  was  furnished  to  enable  the  witnesses  to  perform  the 
requisite  journeys  in  obedience  to  the  summons."^ 

FEES  OF  WITNESSES.2 

1.  A  civilian  ivitness  before  a  court-martial  is  entitled, 
upon  his  discharge,  to  receive  from  the  judge -advocate 
a  certificate,  setting  forth  the  fact  of  his  having  been 
summoned  as  a  witness  in  the  case,  and  the  number  of 
days  of  his  attendance  in  that  capacity  before  the  court. 
To  entitle  a  witness  to  the  payment  of  fees,  it  is  not 
absolutely  essential  that  he  should  produce  a  formal 
subpoena,  addressed  to  and  complied  with  by  him,  or 
that  he  should  have  been  formally  summoned  in  the 
case.  A  strict  observance,  however,  of  section  I,  page 
33,  ante,  would  require  the  issue  of  formal  subpoenas 
to  witnesses  on  both  sides,  and  it  is  the  better  practice 
for  the  judge-advocate  to  causQ  such  to  be  served  in 
each  instance.  ^ 

3.  ' '  Civilians  in  the  employ  of  the  Government  when 
traveling  upon  summons  as  witnesses  before  military 
courts  are  entitled  to  transportation  in  kind  from  their 
place  of  residence  to  the  place  where  the  court  is  in 
session  and  return.  If  no  transportation  be  furnished, 
they  are  entitled  to  reimbursement  of  the  cost  of  travel 
actually  performed  by  the  shortest  usually  traveled 
route,  including  transfers  to  and  from  railway  stations, 

1  Par.  84,  A.  K. 

'  When  the  employment  of  experts  is  necessary  in  a  trial  by  court-martial, 
the  judge-advocate  will  apply  to  the  Secretary  of  War  for  authority  to  em- 
ploy them  and  for  a  decision  as  to  the  compensation  to  be  paid  them. 

3  A  civilian  witness  must  be  duly  subpoenaed  and  tendered  fees  under  the 
act  of  Congress  approved  March  2,  1901,  in  order  to  maintain  the  prosecu- 
tion authorized  by  that  act.     See  page  36,  par,  10,  ante. 


FEES  OF  WITNESSES.  41 

at  rates  not  exceeding  fifty  cents  for  each  transfer,  and 
the  cost  of  a  double  berth  in  a  sleeping  car  or  steamer 
when  an  extra  charge  is  made  therefor.  They  are  also 
entitled  to  reimbursement  of  the  actual  cost  of  meals 
and  rooms  at  a  rate  not  exceeding  three  dollars  per  day 
for  each  day  actually  and  unavoidably  consumed  in 
travel  or  in  attendance  upon  the  court  under  the  order 
or  summons.  No  allowance  will  be  made  to  them 
when  attendance  upon  court  does  not  require  them  to 
leave  their  stations."^ 

3.  A  civilian  not  in  Government  employ  duly  sum- 
moned to  appear  as  a  witness  before  a  military  court 
will  receive  fees  and  mileage  at  the  rates  provided  for 
witnesses  in  the  United  States  district  court  for  the 
State,  Territory,  or  District  in  which  the  court  is  held, 
and  said  fees  and  mileage  shall  be  duly  paid  or  tendered 
said  witness,  such  amounts  to  be  paid  by  the  Pay  De- 
partment of  the  Army  out  of  the  appropriation  for 
compensation  of  witnesses.  ^ 

4.  ' '  The  charges  for  return  journeys  of  witnesses  will 
be  made  upon  the  basis  of  the  actual  charges  allowed 
for  travel  to  the  court,  and  the  entire  account  thus 
completed  will  be  paid  upon  discharge  from  attendance, 
without  waiting  for  completion  of  return  travel.  "^ 

5.  "The  items  of  expenditure  authorized  in  para- 
graphs 1066  and  1067  (Army  Regulations)  will  be  set 

iPar.  1066,  A.  R. 

2  Act  approved  Marcli  2,  1901,  sec.  1,  page  122,  post.  The  laws  governing 
fees  and  mileage  to  witnesses  in  United  States  courts  are  as  follows : 

"  For  each  day's  attendance  in  conrt,  or  before  any  officer  pursuant  to  law, 
one  dollar  and  fifty  cents,  and  five  cents  a  mile  for  going  from  his  place  of 
residence  to  the  place  of  trial  or  hearing,  and  five  cents  a  mile  for  return- 
ing."    (Sec.  848,  R.  S.) 

"Witnesses  in  the  United  States  courts  in  the  States  of  Wyoming,  Mon- 
tana, Washington,  Oregon,  California,  Nevada,  Idaho,  and  Colorado,  and 
in  the  Territories  of  New  Mexico,  Arizona,  and  Utah,  shall  be  entitled  to 
and  receive  fifteen  cents  for  each  mile  necessarily  traveled  over  any  stage 
line  or  by  private  conveyance,  and  five  cents  for  each  mile  over  any  railway 
in  going  to  and  returning  from  said  courts."  (Act  approved  Augusts,  1892, 
2  Sup.  R.  S.,  65.)    As  to  Porto  Rico,  see  page  166,  post. 

•Par.  1068,  A.  R. 


42  EXAMINATION   OF  WITNESSES. 

forth  in  detail  and  made  a  part  of  each  voucher  for 
reimbursement.  No  other  items  will  be  allowed.  The 
correctness  of  the  items  will  be  attested  by  the  affida- 
vit of  the  witness,  to  be  made  when  practicable  before 
the  judge-advocate,  and  the  voucher  will  be  accom- 
panied by  the  original  summons  or  a  duly  certified 
copy  thereof.  The  certificate  of  the  judge-advocate 
will  be  evidence  of  the  fact  and  period  of  attendance, 
and  will  be  made  upon  the  voucher. "  ^ 

7.  ' '  Compensation  to  civilians  in  or  out  of  Govern- 
ment employ  for  attendance  upon  civil  courts  is  payable 
by  the  civil  authorities."  -^ 

EXAMINATION  OF  WITNESSES. 

1.  Witnesses  are  usually  examined  apart  from  each 
other,  no  witness  being  allowed  to  be  present  during  the 
examination  of  another  who  is  called  before  him.  But 
this  rule  is  not  inflexible ;  it  is  in  modern  practice  sub- 
ject to  the  discretion  of  the  court,  nor  is  it  ever  so 
rigidly  observed  as  to  exclude  the  testimony  of  a  person 
who  has  inadvertently  been  present  at  the  examination 
of  other  witnesses. 

2.  Courts-martial  follow  in  general,  so  far  as  apposite, 
the  common -law  rules  of  evidence  ^  as  observed  by  the 
United  States  courts  in  criminal  cases,  but  they  are  not 
required  by  statute  to  do  so,  and  a  certain  latitude  in 
the  introduction  of  evidence  and  the  examination  of 
witnesses,  by  an  avoidance  of  technical  and  restrictive 
rules,  is  permissible  when  it  is  in  the  interest  of  the 
administration  of  military  justice,  but  no  witness  shall 
be  compelled  to  incriminate  himself  or  to  answer  any 
question  which  may  tend  to  incriminate  or  degrade  him.'' 

1  Par.  1069,  A.  B.  «  Id.,  1070. 

'  Copies  of  any  records  or  papers  in  the  War  Department  or  any  of  it? 
bui-eaus,  if  authenticated  by  the  impressed  stamp  of  the  bureau  or  office 
having  custody  of  the  originals  (e.  g.,  "Adjutant  General's  Office,  Official 
Cujiy"),  maybe  admitted  in  evidence  equally  with  the  originals  thereol 
before  any  court-martial,  court  of  inquiry,  or  in  any  administrative  matter 
under  the  War  Department.     (G.  0.  91,  A.  G.  0.,  1900.) 

*  Act  of  Congress  approved  March  2,  1901,  sec.  1,  page  122,  ;po8l. 


MNDIITG.  43 

S.  While  the  proper  and  usnal  order  and  sequence  of 
examination  of  witnesses  is  outlined  in  the  ' '  form  for 
record  of  a  General  Court-Martial, "  page  137,  2>ost,  the 
court  may,  in  the  interest  of  truth  and  justice,  call  or 
recall  witnesses,  or  permit  their  recall  at  any  stage  of 
the  proceedings ;  it  may  permit  material  testimony  to 
be  introduced  by  either  party  quite  out  of  its  regular 
order  and  place,  or  permit  a  case  once  closed  by  either 
or  both  sides  to  be  re-opened  for  the  introduction  of 
testimony  previously  omitted,  if  convinced  that  such 
testimony  is  so  material  that  its  omission  would  leave 
the  investigation  incomplete.  In  all  such  cases  both 
parties  must  be  present,  and  any  testimony  thus  received 
would  be  subject  to  cross-examination  and  rebuttal  by 
the  party  to  whom  it  may  be  adverse. 

PTNDING. 

1.  The  finding  of  the  court  will  be  governed  by  the 
evidence  considered  in  connection  with  the  plea.  The 
finding  upon  the  charge  should  be  consistent  with  that 
upon  the  specification. 

2.  The  accused  may  be  found  guilty  of  parts  of  the 
specification,  not  guilty  of  the  remainder,  and  then,  if 
the  specification  still  supports  the  charge,  guilty  of  the 
charge. 

3.  If  the  evidence  proves  the  commission  of  an  offense 
less  in  degree  than  that  specified,  yet  kindred  to  it,  the 
court  may  except  words  of  the  specification,  substitute 
others  instead,  pronounce  the  guilt  and  innocence  of  the 
substituted  and  excepted  words,  respectively,  and  then 
find  the  accused  not  guilty  of  the  charge  but  guilty  of 
the  lesser  kindred  offense.  Of  this  form  of  verdict  the 
most  familiar  is  the  finding  of  guilty  of  absence  with- 
out leave  under  a  charge  of  desertion.  In  such  a  case, 
in  its  finding  of  guilty  upon  the  specification,  the  court 
should  in  terms  except  the  words  "did  desert,"  and  sub- 
stitute therefor  the  words  "did  absent  himself  without 


44  PREVIOUS   CONVICTIONS. 

authority. "  The  finding  upon  the  charge  should  regu- 
larly be  "not  guilty,  but  guilty  of  absence  without 
leave.  "^ 

4.  Another  legal  and  now  common  form  of  finding  is 
where  an  accused  is  charged  with  a  specific  offense,  made 
punishable  by  an  Article  of  War,  other  than  the  62d, 
and  the  court  is  of  the  opinion  that,  while  the  material 
allegations  in  the  specification  are  proved,  they  do  not 
fully  sustain  the  charge  as  laid,  but  do  clearly  establish 
a  breach  of  military  discipline ;  in  this  case  the  accused 
may  properly  be  found  guilty  of  the  specification  and 
not  guilty  of  the  charge,  but  guilty  of  ' '  conduct  to  the 
prejudice  of  good  order  and  military  discipline."  It 
should  be  remembered,  however,  that  the  court  can  not 
in  its  finding  legally  substitute  the  62d  Article  of  War 
for  any  other,  unless  the  proof  fails  to  substantiate  the 
specification  under  the  original  charge.  The  reverse  of 
this  form  of  finding  has  never  been  sanctioned.  Thus 
where  a  charge  is  laid  under  the  general  article,  a  find- 
ing under  any  other  article,  or,  where  a  charge  is  laid 
under  a  specific  article,  a  finding  under  any  other  spe- 
cific article,  would  be  wholly  irregular. 

5.  In  a  case  of  virtual  acquittal,  to  use  the  term 
"guilty"  is  improper;  the  correct  expression  is,  "find 
the  facts  as  charged,  but  attach  no  criminality  thereto." 
"Guilty"  should  be  employed  only  when  the  accused 
has  been  convicted  of  a  crime  deserving  punishment. 

PREVIOUS  CONVICTIONS. 2 

1.  Whenever  a  soldier  is  convicted  of  an  offense  for 
which  a  discretionary  punishment  is  authorized,  the 

1  It  is  beyond  the  power  of  a  reviewing  officer  to  change  a  finding  by  his 
own  action.  Thus  where,  in  a  case  of  desertion,  the  reviewing  authority 
approved  "so  much  only  of  the  finding  of  guilty  of  desertion  as  convicted 
the  accused  of  absence  without  leave,"  it  was  held  that  he  thus  substituted 
a  finding  of  his  own  for  that  of  the  court,  and  that  his  action  was  unau- 
thorized. 

2 By  "previous  conviction"  is  meant  a  conviction  where  the  sentence 
has  been  approved  by  competent  authority.  This  refers  to  all  trials  except 
where  the  post  commander  sits  as  a  summary  court,  when  no  approval  of 
the  sentence  is  re<iuired  by  law. 


PUNISHMENT.  45 

court  will  receive  evidence  of  previous  convictions,  if 
there  be  any;  such  evidence  being  limited,  except  in 
the  case  of  desertion,  to  previous  convictions  by  courts- 
martial'  of  an  offense  or  offenses  within  one  year  pre- 
ceding the  arraignment  and  during  the  current  enlist- 
ment. General,  regimental,  and  garrison  courts-martial 
will,  after  a  finding  of  guilty,  be  opened  for  the  purpose 
of  ascertaining  whether  there  is  such  evidence  and,  if 
so,  of  receiving  it.^ 

2.  Previous  convictions  by  courts-martial  must  be 
proved  by  the  records  of  previous  trials  and  convictions, 
or  by  duly  authenticated  copies  of  such  records,  or  by 
duly  authenticated  copies  of  the  orders  promulgating 
such  trials.  -^  The  usual  evidence  of  previous  convictions 
by  summary  court  is  the  copy  of  a  summary  court 
record  furnished  to  company  and  other  commanders,  as 
required  by  paragraph  1031,  Army  Regulations,  or  one 
furnished  for  the  purpose,  and  certified  to  be  a  true 
copy  by  the  commanding  officer  or  adjutant.^ 

3.  The  previous  convictions  are  not  limited  to  those 
for  offenses  similar  to  the  one  for  which  the  accused  is 
on  trial.  The  object  is  "to  see  if  the  prisoner  is  an  old 
offender,  and  therefore  less  entitled  to  leniency  than  if 
on  trial  for  his  first  offense. "  This  information  might 
not  be  fully  obtained  if  evidence  of  previous  convictions 
of  similar  offenses  only  were  laid  before  the  court.  It 
has  no  bearing  upon  the  question  of  guilt  of  the  par- 
ticular charge  on  trial,  but  only  upon  the  amount  and 
kind  of  punishment  to  be  awarded,  and  to  this  end  it  is 
proper  that  all  previous  convictions  should  be  known. 

PUNISHMENT. 

1.  Punishment,  under  the  Articles  of  War,  is  either 
fixed  or  is  left  to  the  discretion  of  a  court-martial.     If 

1  The  introduction  of  evidence  of  convictions  by  civil  courts  is  not 
authorized. 

2Exec-utive  order  of  March  12,  1901,  page  55,  par.  2,  post. 

2  Id.,  page  55,  par.  1,  post. 
4  Par.  1038,  A.  R. 


46  PUNISHMENT. 

the  punishment  is  prescribed  in  the  article  violated,  any 
other  punishment  than  that  prescribed  is  illegal.  Before 
pronouncing  sentence,  the  court  should,  therefore,  in 
case  of  any  uncertainty,  examine  the  article  violated  to 
see  what  punishment  may  be  legally  awarded,  and  in 
awarding  punishment  it  should  be  remembered  that 
the  proper  amount  of  punishment  is  the  least  by  which 
discipline  can  be  efficiently  maintained. 

2.  For  officers,  the  legal  punishments  by  courts- 
martial,  depending  on  the  nature  of  the  offense,  are 
death,  dismissal,  suspension  from  rank,  command,  or 
duty,  with  or  without  loss  of  pay  or  part  of  pay,  loss  of 
relative  rank  or  files,  imprisonment,  fine  or  forfeiture 
of  pay,  and  reprimand. 

3.  For  soldiers,  the  legal  punishments,  depending  on 
the  character  of  the  offense  and  the  jurisdiction  of  the 
court,  are,  death,  confinement,  confinement  on  bread- 
and-water  diet,  solitary  confinement,  hard  labor,  ball 
and  chain,  forfeiture  of  pay  and  allowances,  dishonor- 
able discharge  from  service,^  and  reprimand;  for  non- 
commissioned officers,  reduction  to  the  ranks  also  f  and 
for ' '  candidates  for  promotion, "  deprivation  of  all  rights 
and  privileges  arising  from  a  certificate  of  eligibility.^ 

4.  ' '  No  person  in  the  military  service  shall  be  pun- 
ished by  flogging,  or  by  branding,  marking,  or  tattooing 
on  the  body,"* 

5.  Military  prisoners  will  not  be  punished  by  being 
required  to  carry  a  heavy  log.  Some  other  punishment 
can  be  found  equally  effective  and  not  open  to  the 
objections  urged  against  this  method. 

6.  Punishment  by  ball  and  chain  will  be  imposed  only 
in  extreme  cases.  ^ 

lA  dislionorable  discharge  is  an  entire  expulsion  from  the  Army  and 
covers  all  unexpired  enlistments. 

2  In  regard  to  sergeants  of  the  post,  noncommissioned  staff,  and  hospital 
stewards,  see  page  57,  post. 

3  Act  of  July  30,  1892;  see  G.  0.  79,  A.  G.  0.,  1892. 

4  98th  A.  W. 

6  See  page  65,  par.  3,  post. 


PUNISHMENT.  47 

7.  "Sentences  imposing  tours  of  guard  duty  are  for- 
oidden." ' 

8.  Solitary  confinement,  or  confinement  on  bread-and- 
water  diet,  shall  not  exceed  fourteen  days  at  a  time,  nor 
be  again  enforced  until  a  period  of  fourteen  days  has 
elapsed.  Nor  shall  such  confinement  exceed  eighty-four 
days  in  any  one  year.^ 

9.  A  court-martial  can  direct  a  forfeiture  only  in  favor 
of  the  United  States,  and  can  not  assign  the  pay  of  a 
soldier  to  any  other  person ;  nor  can  a  soldier  be  required 
to  receipt  for  money  paid  without  his  consent. 

10.  "  If  a  soldier  be  brought  to  trial  under  a  charge 
of  desertion  and  acquitted,  or  convicted  of  absence- 
without -leave  only,  or  if  the  sentence  be  disapproved  by 
proper  authority,  any  amount  paid  as  a  reward  for  his 
arrest  will  not  be  stopped  against  his  pay  unless,  in  case 
of  conviction  of  absence- without-leave,  the  sentence  of 
the  court  shall  so  direct. "  ^ 

11.  "No  person  in  the  military  service  shall,  under 
the  sentence  of  a  court-martial,  be  punished  by  confine- 
ment in  a  penitentiary,  unless  the  offense  of  which  he 
may  be  convicted  would,  by  some  statute  of  the  United 
States,  or  by  some  statute  of  the  State,  Territory,  or  Dis- 
trict in  which  such  offense  may  be  committed,  or  by 
the  common  law,  as  the  same  exists  in  such  State, 
Territory,  or  District,  subject  such  convict  to  such 
punishment."^ 

12.  The  97th  Article  of  War  only  limits  the  discre- 
tion of  the  court  as  "to  imprisonment  in  the  peniten- 
tiary, and  it  has  been  nowhere  provided  that  the  pun- 
ishment may  not  in  other  respects  be  greater  than  the 
civil  courts  could  inflict."^    Notwithstanding  this,  a 

1  Par.  1040,  A.  R. 

2  See  page  fi7,  post. 

3  Par.  138,  A.  R.  This  paragraph  is  not  affected  by  the  order  of  the  Presi- 
dent prescribing  the  limit  of  punishment.     See  page  50,  post,  note. 

4  97th  A.  W. 

^  Ex  parte  Mason,  105  U.  S.,  696.    See  G.  0.  61,  A.  G.  0.,  1882. 


48  LIMITS   OF   PUNISHMENT. 

court-maitial  should  properly  consult  the  statute  gov- 
erning the  civil  courts,  in  order  to  determine  a  reason- 
able measure  of  punishment  for  the  offense. 

13.  The  most  common  offenses  punishable  by  confine- 
ment in  a  penitentiary  are,  those  mentioned  in  Article 
60,  and  robbery,  grand  larceny,  embezzlement,  forgery, 
burglary,  arson,  mayhem,  manslaughter,  assault  with 
intent  to  kill,  rape,  or  assault  with  intent  to  commit 
rape.  Any  of  these  offenses,  when  committed  to  the 
prejudice  of  good  order  and  military  discipline,  either 
in  time  of  peace  or  war,  are  punishable  as  stated. 


MAXIMUM  lilMITS  OF  PUNISHMENT. 

The  act  of  September  27,  1890,  provides:  "That 
whenever  by  any  of  the  Articles  of  War  for  the  govern- 
ment of  the  Army  the  punishment  on  conviction  of  any 
military  offense  is  left  to  the  discretion  of  the  court- 
martial,  the  punishment  therefor  shall  not,  in  time  of 
peace,  be  in  excess  of  a  limit  which  the  President  may 
prescribe. "  The  last  order  of  the  President  prescribing 
limits  of  punishment  is  as  follows : 

Executive  Mansion, 

March  12,  1001. 

The  Executive  order,  dated  March  30,  1898,  establish- 
ing limits  of  punishment  for  enlisted  men  of  the  Army, 
under  an  act  of  Congress  approved  September  27,  1890, 
and  which  was  published  in  General  Orders,  No.  16, 
1898,  Headquarters  of  the  Army,  is  amended  so  as  to 
prescribe  as  follows : 

Article  I. 

In  all  cases  of  desertion  the  sentence  may  include  dis^ 
honorable  discharge  and  forfeiture  of  pay  and  allowances. 

Subject  to  the  modifications  authorized  in  Section  3 
of  this  article  the  limit  of  the  term  of  confinement  (at 
hard  labor)  for  desertion  shall  be  as  follows : 

Section  1.  In  case  of  surrender — 

(a)  When  the  deserter  surrenders  himself  after  an 
absence  of  not  more  than  thirty  days,  one  year. 


LIMITS   OF   PUNISHMENT. 


49 


(b)  When  the  surrender  is  made  after  an  absence  of 
more  than  thirty  days,  eighteen  months. 
Sec.  2.  In  case  of  apprehension— 

(a)  When  at  the  time  of  desertion  the  deserter  shall 
not  have  been  more  than  six  months  in  the  service, 
eighteen  months. 

(b)  When  he  shall  have  been  more  than  six  months 
in  the  service,  two  and  one-half  years. 

Sec.  3,  The  foregoing  limitations  are  subject  to  mod- 
ification under  the  following  conditions : 

(a)  The  punishment  of  a  deserter  may  be  increased 
by  one  year  of  confinement  at  hard  labor  in  considera- 
tion of  each  previous  conviction  of  desertion. 

(b)  The  punishment  for  desertion  when  joined  in  by 
two  or  more  soldiers  in  the  execution  of  a  conspiracy, 
or  for  desertion  in  the  presence  of  an  outbreak  of 
Indians  or  of  any  unlawful  assemblage  which  the  troops 
may  be  opposing,  shall  not  exceed  dishonorable  dis- 
charge, forfeiture  of  all  pay  and  allowances,  and  con- 
finement at  hard  labor  for  five  years. 

Article  II. 

Except  as  herein  otherwise  indicated,  punishments 
shall  not  exceed  the  limits  prescribed  in  the  following 
table : 


Offenses. 


Limits  of  punishment. 


Under  17th  Article  of 
War. 

Selling  horse  or  arms,  or  both . 


Selling  accouterments. 


Selling  clothing 


Losing  or  spoiling  horse  or 
arms  through  neglect. 


Losing  or  spoiling  accouter- 
ments or  clothing  through 
neglect. 

12915 4 


Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  confinement  at  hard 
labor  for  three  yeare. 

Four  months'  confinement  at  hard  labor  and 
forfeiture  of  flO  per  month  for  the  same 
period;  for  noncommissioned  oflicer,  reduc- 
tion in  addition  thereto. 

Two  months'  confinement  at  hard  labor  and 
forfeiture  of  |10  per  month  for  the  same 
period  ;  for  noncommissioned  oflicer,  reduc- 
tion in  addition  thereto. 

Four  months  confinement  at  hard  labor  and 
forfeiture  of  $10  per  moutli  for  the  same 
period ;  for  noncommissioned  oflicer,  reduc- 
tion in  addition  thereto. 

Twenty  days'  confinement  at  hard  labor  and 
forfeiture  of  f6  ;  for  noncommissioned  ofli- 
cer, reduction  in  addition  thereto. 


50 


LIMITS   OF   PUNISHMENT. 


Offenses. 


Limits  of  punishment. 


Under  20th  Article  of 
War. 

Behaving  himself  with  dis- 
respect to  his  commanding 
officer. 


Under  24th  Article  of 
War.     ' 

Befasal  to  obey  or  using 
violence  to  officer  or  non- 
commissioned officer  while 
quelling  quarrels  or  dis- 
orders. 

Under  32d  Article  of  War. 

Absence  without  leave  ' — 
One  hour  or  less 


For  more  than  one  to  six 
hours,  inclusive. 


For  more  than  six  to 
twelve  hours,  inclusive 

For  more  than  twelve 
to  twenty-four  hours, 
inclusive. 

For  more  than  twenty- 
four  to  forty-eight 
hours,  inclusive. 


For  more  than   two  to 
ten  days,  inclusive. 

For  more   than  ten   to 
thirty  days,  inclusive. 

For  more  than  thirty  to 
ninety  days,  inclusive. 


For  more  than  ninety 
days. 


Six  months'  confinement  at  hard  labor  and 
forfeiture  of  $10  per  mouth  for  the  same 
period ;  for  noncommissioned  officer,  reduc- 
tion in  addition  thereto. 


Dishonorable  discharge,  with  forfeiture  of  all 
pay  and  allowances  and  confinement  at  hard 
labor  for  two  years. 


Forfeiture  of  $1 ;  corporal,  $2  ;  sergeant,  $3  ; 
1st  sergeant  or  noncommissioned  officer  of 
higher  grade,  $4. 

Forfeiture  of  $2 ;  corporal,  $3  ;  sergeant,  $4  ; 
Ist  sergeant  or  noncommissioned  officer  of 
higher  grade,  $5. 

Forfeiture  of  $3  ;  corporal,  $4  ;  sergeant,  $6  ; 
1st  sergeant  or  noncommissioned  officer  of 
higher  grade,  $1. 

Forfeiture  of  $5  ;  corporal,  $6 ;  sergeant,  $7 ; 
1st  sergeant  or  noncommissioned  officer  of 
higher  grade,  $10. 

Forfeiture  of  $G  and  five  days'  confinement 
at  hard  labor.  For  corporal,  forfeiture  of 
$8  ;  sergeant,  $10  ;  1st  sergeant  or  noncom- 
missioned officer  of  higher  grade,  $12 ;  or, 
for  all  noncommissioned  officers,  reduction. 

Forfeiture  of  $10  and  ten  days'  confinement 
at  hard  labor ;  for  noncommissioned  officer, 
reduction  in  addition  thereto. 

Forfeiture  of  $30  and  one  month's  confinement 
at  hard  labor  ;  for  noncommissioned  officer, 
reduction  in  addition  thereto. 

Three  months'  confinement  at  hard  labor  and 
forfeiture  of  $10  per  month  for  same  period ; 
for  noncommissioned  officer,  reduction  in 
addition  thereto. 

Dishonorable  discharge  and  forfeiture  of  all 
pay  and  allowances  and  six  mouths'  con- 
finement at  hard  labor. 


>  Upon  trial  for  desertion  and  conviction  of  absence  without  leave  only, 
the  court  may,  in  addition  to  the  limit  prescribed  for  such  absence,  award 
a  stoppage  of  the  amount  paid  fur  apprehension,  and  for  transportation  of 
himself  and  guard. 


LIMITS   OF    PUNISHMENT. 


51 


Limits  of  punishment. 


TJndee33d  Article  of  War. 

Failure  to  repair  at  the  time 
fixed,  to  the  place  ap- 
pointed, etc. — 

For  reveille  or  retreat 
roll-call  and  11  p.  m. 
inspection. 

For  assembly  of  guard 

detail. 
For  guard  mounting  fby 

musician  detailed  lor 

guard). 

For  guard  mounting  (by 
musician  not  detailed 
for  guard). 
For  assembly  of  fatigue 
detail. 

For  dress  parade 

For  inspection  and  mus- 
ter, weekly  or  monthly 
inspection. 

For  target  practice 

For  drill 

For  stable  duty 

For  athletic  exercises  __. 


Under  38tii  Article  of 
War. 


Found  drunk- 
On  guard. 


On  duty  as  head  cook 

On  extra  or  special  duty_ 

At  formation  of  company 

for  drill  or  on  drill. 

At  target  practice 

At  formation  of  company 
for  dress  parade  or  on 
dress  parade. 
At    reveille    or    retreat 

roll-call. 
At  inspection  and  muster, 
weekly  or  monthly  in- 
spection. 
At  inspection  of  company 
guard  detail  or  at 
guard  mounting. 

At  stable  duty 

On  fatigue 


Forfeiture  of  $1 ;  corjioral,  $2  ;  sergeant,  $3 
1st  sergeant,  $4. 


Forfeiture  of  S5  ;  corporal,  $8  ;  sergeant,  $10. 


■  Forfeiture  of  $2  ;  corporal,  $3 ;  sergeant,  §5. 


Six  months'  confinement  at  hard  labor  and 
forfeiture  of  $10  per  month  for  the  same 
period ;  for  noncommissioned  oflicer,  reduc- 
tion in  addition  thereto. 

Forfeiture  of  $20. 

1 


Forfeiture   of  $12 ;    for  noncommissioned 
qificer,  reduction  and  forfeiture  of  $20, 


52 


LIMITS   OF   PUNISHMENT. 


Offenses. 


Limits  of  puDishment. 


Under  40th  Article  of 
War. 

Quitting  guard 


Under  SIst  Article  of 
War. 

Persuading  soldiers  to  desert. 


Under  60th  Article  of 
War. 


Under  62d  Article  of  War. 


Manslaughter  . 


Assault,  with  intent  to  kill . 

Burglary  

Forgery 

Perjury 

False  swearing 

Robbery 


Larceny  or  embezzlement  of 
property '  — 

Of  the  value  of   more 
than  glOO. 


Of  the  value  of  $100  or 
less  and  more  than  $50. 


Six  months'  confinement  at  hard  labor  and 
forfeiture  of  $10  per  month  for  the  same 
period  ;  for  noncommissioned  officer,  reduc- 
tion in  addition  thereto. 


Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  one  year's  confinement 
at  hard  labor. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  four  years'  confine- 
ment at  hard  labor. 


Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  ten  years'  confinement 
at  hard  labor. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  ten  years'  confinement 
at  hard  labor. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  five  years'  confinement 
at  hard  labor. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  four  j'ears'  confinement 
at  hard  labor. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  four  years'  confinement 
at  hard  labor. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  two  years'  confinement 
'   at  hard  labor. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  six  years'  confinement 
at  hard  labor. 


Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  four  years'  confinement 
at  hard  labor. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  three  years'  confine- 
ment at  hard  labor. 


1  In  specifications  to  charges  of  larceny  or  embezzlement  the  value  of  the 
property  shall  be  stated. 


LIMITS   OB"    PUNISHMENT. 


53 


Offenses. 


Limits  of  punishment. 


Under  62d  Article  of  War 
—Cont'd. 

Larceny  or  embezzlement  of 
property! — Continued. 

Of  the  vahieof$50orles8 
and  more  than  $20. 


Of  the  value  of  $20  or  less 


Fraudulent  enlietment,  pro- 
cured by  false  representa- 
tion or  concealment  of  a 
fact  in  regard  to  a  prior 
enlistment  or  discharge, 
or  in  regard  to  conviction 
of  a  civil  or  military  crime. 

Fraudulent  enlistment,  other 
cases  of. 


Disobedience  of  orders,  in- 
volving willful  defiance  of 
the  authority  of  a  non- 
commissioned officer  in  the 
execution  of  his  office. 

Using  threatening  or  insult- 
ing language  or  behaving 
in  an  insubordinate  man- 
ner to  a  noncommissioned 
officer  while  in  the  execu- 
tion of  his  office. 

Absence  from  fatigue  duty  _. 

Absence  from  extra  or  special 
duty. 

Absence  from  duty  as  com- 
pany, general  mess,  or 
hospital  head  cook. 

Introducing  liquor  into  post, 
camp,  or  quarters  in  viola- 
tion of  standing  orders. 

Drunkenness  at  post  or  in 
quarters. 


Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  two  years'  confinement 
at  hard  labor. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  one  year's  confinement 
at  hard  labor. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  confinement  at  hard 
labor  for  one  year. 


Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  confinement  at  hard 
labor  for  six  months. 

Six  months'  confinement  at  hard  labor  and 
forfeiture  of  $10  per  month  for  the  same 
period ;  for  noncommissioned  officer,  re- 
duction in  addition  thereto. 


One  month's  confinement  at  hard  labor  and 
forfeiture  of  $10 ;  for  noncommissioned 
officer,  reduction  in  addition  thereto. 


Forfeiture  of  $4  ;  corporal,  $5  ;  sergeant,  $6. 
Forfeiture  of  $4  ;  corpc^l,  $5  ;  sergeant,  $6. 

Forfeiture  of  $10. 


Forfeiture  of  $3 ;  for  noncommissioned  officer, 
reduction  and  forfeiture  of  $5. 


Forfeiture  of  $3  ;  for  noncommissioned  officer, 
reduction  and  forfeiture  of  $5. 


1 1n  specifications  to  charges  of  larceny  or  embezzlement  the  value  of  the 
property  shall  be  stated. 


.54 


LIMITS   OF   PUNISHMENT. 


Offenses. 


Limits  of  punishment. 


Under  62d  Article  of  War 
—Cont'd. 

Drunkenness  and  disorderly 
conduct,  causing  the 
offender's  arrest  and  con- 
viction by  civil  authorities 
at  a  place  within  ten  miles 
of  his  station. 

Noisy  or  disorderly  conduct 
in  quarters. 

Drunk  and  disorderly  in  post 
or  quarters. 

Abuse  by  noncommissioned 
officer  of  his  authority 
over  an  inferior. 

Noncommissioned  officer  en- 
couraging gambling. 

Noncommissioned  officer 
making  false  report. 

Sentinel  allowing  a  prisoner 
under  his  charge  to  escape 
through  neglect.  ' 

Sentinel  willfully  suffering 
prisoner  under  his  charge 
to  escape. 

Sentinel  allowing  a  prisoner 
under  his  charge  to  obtain 
liquor. 

Sentinel  or  member  of  guard 
drinking  liquor  with 
prisoners. 

Disrespect  or  affront  to  a 
sentinel. 


Resisting  or  disobeying  senti- 
nel in  lawful  execution  of 
his  duty. 

Lewd  or  indecent  exposure 

of  person. 
Committing  nuisance  in  or 

about  quarters. 

Breach  of  arrest  in  quarters  _ 


Forfeiture  of  $10  and  seven  days'  confinement 
at  hard  labor  ;  for  noncommissioned  officer, 
reduction  and  forfeiture  of  $12. 


Forfeiture  of  ^ ;  corporal,  $1 ;  sergeant,  $10. 


Forfeiture  of  $7;  for  noncommissioned  officer, 
reduction  and  forfeiture  of  $10. 

Reduction,  three  months'  confinement  at 
hard  labor,  and  forfeiture  of  $10  per  month 
for  the  same  period. 

Reduction  and  forfeiture  of  $5. 


Reduction,  forfeiture  of  $8,  and  ten  days' 
confinement  at  hard  labor. 

Six  months'  confinement  at  hard  labor  and 
forfeiture  of  $10  per  month  for  the  same 
period. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  one  year's  confinement 
at  hard  labor. 

Two  months'  confinement  at  hard  labor  and 
forfeiture  of  $10  per  month  for  the  same 
period. 

Two  months'  confinement  at  hard  labor  and 
forfeiture  of  $10  per  month  for  the  same 
period. 

Two  months'  confinement  at  hard  labor  and 
forfeiture  of  $10  per  month  for  the  same 
period ;  for  noncommissioned  oflicer,  re- 
duction ill  addition  thereto. 

Six  months'  confinement  at  hard  labor  and 
forfeiture  of  $10  per  month  for  the  same 
period ;  for  noncommissioned  officer,  re- 
duction in  addition  thereto. 

Three  months'  confinement  at  hard  labor 
and  forfeiture  of  $10  per  month  for  the 
same  period  ;  for  noncommissioned  officer, 
reduction  in  addition  thereto. 

One  month's  confinement  at  hard  labor  and 
forfeiture  of  $10 ;  for  noncommissioned 
officer,  reduction  in  addition  thereto. 


LIMITS   OF    PUNISHMENT.  55 


Article  III. 

The  introduction  and  use  of  evidence  of  previous  con- 
victions is  subject  to  the  following  regulations: 

1.  Such  evidence  shall  be  limited  to  previous  convic- 
tions by  courts-martial  of  an  offense  or  offenses  within 
one  year  preceding  the  arraignment  and  during  the 
current  enlistment.  These  convictions  must  be  proved 
by  the  records  of  previous  trials  and  convictions,  or  by 
duly  authenticated  copies  of  such  records,  or  by  duly 
authenticated  copies  of  the  orders  promulgating  such 
trials  and  convictions.  Charges  forwarded  to  the 
authority  competent  to  order  a  general  court-martial, 
or  submitted  to  a  summary,  garrison,  or  regimental 
court-martial,  must  be  accompanied  by  the  proper  evi- 
dence of  previous  convictions. 

2.  Whenever  a  soldier  is  convicted  of  an  offense  for 
which  a  discretionary  punishment  is  authorized,  the 
court  will  receive  evidence  of  previous  convictions,  if 
there  be  any.  G-eneral,  regimental,  and  garrison  courts- 
martial  will,  after  a  finding  of  guilty,  be  opened  for 
the  purpose  of  ascertaining  whether  there  is  such  evi- 
dence, and,  if  so,  of  receiving  it. 

3.  Previous  convictions  in  connection  with  inferior 
court  offenses. — When  a  soldier  is  convicted  of  an 
offense  the  punishment  for  which  under  Article  II  of 
this  order  or  the  custom  of  the  service  does  not  exceed 
one  month's  confinement  at  hard  labor  and  forfeiture 
of  one  month's  pay,  the  punishment  so  authorized  may, 
upon  proof  of  four  or  less  previous  convictions  within 
the  prescribed  period,  be  increased  one-half  for  each  of 
such  previous  convictions ;  provided  that  upon  proof  of 
five  or  more  such  previous  convictions,  the  limit  of 
punishment  shall  be  dishonorable  discharge,  forfeiture 
of  all  pay  and  allowances,  and  confinement  at  hard 
labor  for  three  months. 

4.  Previous  convictions  in  connection  ivith  general 
court-martial  offenses. — When  the  conviction  is  for  an 
offense  punishable  under  Article  II  of  this  order  or  the 
custom  of  the  service  with  a  greater  punishment  than 
one  month's  confinement  at  hard  labor  and  forfeiture 
of  one  month's  pay,  such  punishment,  if  it  includes 
dishonorable  discharge,  shall  not  be  increased  by  reason 
of  previous  convictions,  but  evidence  thereof,  whatever 
their  number  within  the  prescribed  period,  will  be  sub- 
mitted to  the  court  to  aid  it  in  determining  upon  the 
proper  measure  of  punishment,  subject  to  the  limit 
already  authorized. 


56  LIMITS  OF  PUNISHMENT. 

If  the  authorized  punishment  under  Article  II  of  this 
order  or  the  custom  of  the  service  exceeds  one  month's 
confinement  at  hard  labor  and  forfeiture  of  one  month's 
pay,  and  does  not  include  dishonorable  discharge,  such 
punishment  shall  not  be  increased  on  account  of  pre- 
vious convictions  if  less  than  five  are  considered,  but  if 
there  be  five  or  more,  the  court  may  adjudge  dishonor- 
able discharge  and  forfeiture  of  all  pay  and  allowances 
with  the  authorized  confinement,  and  when  this  con- 
finement is  less  than  three  months  it  may  be  increased 
to  three  months. 

5.  On  a  conviction  of  desertion,  evidence  of  convic- 
tions of  previous  desertions  may  also  be  introduced, 
irrespective  of  the  period  which  may  have  elapsed  since 
such  conviction  or  convictions. 

6.  When  a  noncommissioned  officer  is  convicted  of 
an  offense  not  punishable  with  reduction,  he  may,  upon 
proof  of  one  previous  conviction  within  the  prescribed 
period,  be  sentenced  to  reduction  in  addition  to  the 
punishment  ali'eady  authorized. 

7.  First-class  privates  may  be  reduced  to  second-class 
privates  in  all  cases  where,  for  like  offenses  on  the  part 
of  noncommissioned  officers,  their  reduction  in  grade  is 
now  authorized. 

Article  IV. 

When  a  soldier  shall,  on  one  arraignment,  be  con- 
victed of  two  or  more  offenses,  none  of  which  is  pun- 
ishable under  Article  II  of  this  order  or  the  custom  of 
the  service  with  dishonorable  discharge,  but  the  aggre- 
gate term  of  confinement  for  which  may  exceed  six 
months,  dishonorable  discharge  with  forfeiture  of  pay 
and  allowances  may  be  awarded  in  addition  to  the 
authorized  confinement. 

Article  V. 

If,  in  any  case  where  the  limit  of  punishment  is  dis- 
honorable discharge,  forfeiture  of  all  pay  and  allow- 
ances, and  confinement  at  hard  labor  for  a  stated 
number  of  months,  dishonorable  discharge  be  not 
adjudged,  the  limit  of  forfeiture  shall  be  all  pay  due 
and  to  become  due  during  the  prescribed  limit  of  con- 
finement. 

Article  VI. 

This  order  prescribes  the  maximum  limit  of  punish- 
ment for  the  offenses  named,  and  this  limit  is  intended 


LIMITS   OF    PUNISHMENT,  67 


for  those  cases  in  which  the  severest  punishment  should 
be  awarded.  In  other  cases  the  punishment  should  be 
graded  down  according  to  the  extenuating  circum- 
stances. Offenses  not  herein  provided  for  remain  pun- 
ishable as  authorized  by  the  Articles  of  War  and  the 
custom  of  the  service. 


Article  VII. 

Summary  courts  are  subject  to  the  restrictions  named 
in  the  83d  Article  of  War.  Soldiers  against  whom 
charges  may  be  preferred  for  trial  by  summary  court 
shall  not  be  confined  in  the  guardhouse,  but  shall  be 
placed  in  arrest  in  quarters,  before  and  during  trial  and 
while  awaiting  sentence,  except  when  in  particular 
cases  restraint  may  be  necessary. 

Article  VIII. 

Substitutions  for  punishment  named  in  Article  II  of 
this  order  are  authorized  at  the  discretion  of  the  courts 
at  the  following  rates : 

Two  days'  confinement  at  hard  labor  for  one  dollar 
forfeiture,  or  the  reverse;  one  day's  solitary  confine- 
ment on  bread  and  water  diet  for  two  days'  confinement 
at  hard  labor  or  for  one  dollar  forfeiture :  provided  that 
a  noncommissioned  officer  not  sentenced  to  reduction 
shall  not  be  subject  to  confinement;  and  provided  that 
solitary  confinement  shall  not  exceed  fourteen  days  at 
one  time,  nor  be  repeated  until  fourteen  days  have 
elapsed,  and  shall  not  exceed  eighty -four  days  in  one 
year. 

Article  IX. 

Noncommissioned  officers  above  the  rank  of  corporal 
shall  not,  if  they  object  thereto,  be  brought  to  trial  be- 
fore regimental,  garrison,  or  summary  courts-martial, 
without  the  authority  of  the  officer  competent  to  order 
their  trial  by  general  court-martial ;  nor  shall  sergeants 
of  the  post  noncommissioned  staff  or  hospital  stewards 
be  reduced,  but  they  may  be  dishonorably  discharged 
whenever  reduction  is  included  in  the  limit  of  punish- 
ment. 

WILLIAM  Mckinley. 


58  SENTENCE. 


SENTENCE. 


1.  When  in  any  case  the  punishment  is,  by  the  Arti- 
cles of  War,  left  to  the  discretion  of  the  court-martial, 
the  court  will,  before  proceeding  to  award  the  punish- 
ment, ascertain  whether  a  limit  has  been  fixed  by  the 
foregoing  executive  order.  ^  Those  members  desiring  to 
propose  a  sentence  usually  write  it  on  a  slip  of  paper 
and  hand  it  to  the  president.  The  president  reads  the 
proposed  sentences  to  the  court  and  the  members  vote 
on  them  in  order,  beginning  with  the  lightest,  until  a 
majority  agree  upon  a  sentence.  In  a  case  where  a 
punishment  is  fixed,  the  members  vote  upon  a  sentence 
awarding  this  punishment.  Upon  a  death  sentence 
two -thirds  of  the  members  must  concur  (the  record  so 
explicitly  stating) ,  and  no  person  can  be  sentenced  to 
death  except  in  cases  expressly  mentioned  in  the  Arti- 
cles of  War,  or  in  section  1343,  Revised  Statutes,  as  thus 
punishable,"^ 

3.  A  general  court-martial  may  sentence  a  soldier  to 
confinement  in  a  penitentiary  for  any  offense  which  may 
be  thus  i^unished  "by  some  statute  of  the  United  States, 
or  by  some  statute  of  the  State,  Territory,  or  District  in 
which  such  offense  may  be  committed,  or  by  the  com- 
mon law,  as  the  same  exists  in  such  State,  Territory,  or 
District."^  When,  therefore,  the  sentence  of  such  a 
court-martial  prescribes  imprisonment,  the  court  will 
state  therein  whether  the  prisoner  shall  be  confined  "in 
a  penitentiary*  or  in  some  place  under  military  juris- 

i"When  a  sentence  of  confinement  or  forfeiture  is  in  excess  of  the 
legal  limit,  the  part  within  the  limit  is  legal  and  may  be  executed." 
(Par.  1044,  A.  K.) 

2  96th  A.  W. 

»  97th  id. 

•*  Unless  the  laws  of  the  State,  Territory,  etc.,  in  which  the  court  is  con- 
vened are  at  hand,  it  is  impossible  for  the  court  to  determine  in  all  cases 
whether  or  not,  under  the  97th  Article  of  War,  the  offender  is  punishable 
by  penitentiary  confinement.  Therefore,  in  case  of  any  doubt,  the  words 
"in  such  place  as  the  reviewing  authority  may  direct,"  will  be  used  in  the 
sentence. 


RECORD   OF   PROCEEDINGS.  59 

diction,  being  guided  in  its  determination  by  the  97th 
Article  of  War. "  * 

4.  *  'When  a  sentence  imposes  forfeiture  of  pay,  or  of  a 
stated  portion  thereof,  for  a  certain  number  of  months, 
it  stops  for  each  of  those  months  the  amount  stated. 
Thus :  '  Ten  dollars  of  monthly  pay  for  one  year '  would 
be  a  stoppage  of  |120.  When  the  sentence  is  silent  as 
to  the  date  of  commencement  of  forfeiture  of  pay,  the 
forfeiture  will  begin  at  the  date  of  promulgation  of  the 
sentence  in  orders,  and  will  not  apply  to  pay  which 
accrued  previous  to  that  date."^ 

5.  "Notwithstanding  a  sentence  contemplates  pay- 
ment of  a  stated  sum  to  a  soldier  upon  his  release  from 
confinement,  it  can  not  be  made  unless  there  is  a  suffi- 
cient balance  to  his  credit  after  all  authorized  stoppages 
are  .deducted.  "2 

6.  "A  sentence  adjudging  a  dishonorable  discharge, 
to  take  effect  at  such  period  during  a  term  of  confine- 
ment as  may  be  designated  by  the  reviewing  authority, 
is  illegal."  ^ 

RECORD  OF  PROCEEDINGS. 

1.  Every  court-martial  will  keep  an  accurate  record^ 
of  its  proceedings.  The  record  in  each  case  will  be 
complete  in  itself,  and  will  contain  a  copy  of  the  order 
appointing  the  court.  It  will  be  authenticated  by  the 
signatures  of  the  president  and  judge-advocate,  the 
latter  affixing  his  signature  to  each  day's  proceedings. 
Whenever,  by  reason  of  the  death  or  disability  of  the 
judge-advocate  occurring  after  the  court  has  decided 
on  the  sentence,  the  record  can  not  be  authenticated  by 
his  signature  it  must  show  that  it  has  been  formerly 
approved  by  the  court  and  must  be  authenticated  by 
the  signature  of  the  president.  ^    The  record  must  show 

1  Par.  1041,  A.  R.  «  Id.,  1052.  3  M,  1054.  <  Id.,  1060. 

6  "When  records  of  trial  by  general  courts-martial  are  written  on  the 
typewriter,  the  copyable  ribbon  will  bo  used  when  practicable."  (Par. 
1056,  A.  R.) 

6  Par.  1055,  A.  R. 


60  RECORD   OF  1>R0CEEDINGS. 

that  the  court  was  organized  as  the  law  requires^  that 
the  prisoner  was  asked  if  he  wished  to  object  to  any 
member  and  his  answer  to  such  question,  and  that  the 
members  of  the  court  and  the  judge-advocate  were  duly 
sworn. 

2.  The  reading  of  previous  proceedings  and  of  testi- 
mony for  approval  will  be  dispensed  with,  unless  for 
special  reason  considered  necessary  by  the  court,  or  a 
witness  desires  to  have  certain  testimony  read  for  cor- 
rection. ' 

3.  All  orders  modifying  the  detail  of  the  court  and 
issued  after  its  original  organization  must  be  incorpo- 
rated in  the  record.  The  record  should  also  note  the 
fact  of  a  new  member  taking  his  seat,  or  a  new  judge - 
advocate  commencing  to  officiate,  according  to  orders, 
on  a  certain  day.     (But,  see  page  28,  par.  4,  ante.) 

4.  The  entire  proceedings  will  be  spread  upon  the 
record ;  all  orders  and  rulings  of  the  court ;  all  motions, 
propositions,  objections,  arguments,  statements,  etc., 
of  the  judge-advocate  or  the  accused;  the  testimony  of 
each  witness,  as  nearly  as  possible  in  his  own  language ; 
in  short,  every  feature  of  the  proceedings  material  to  a 
complete  history  of  the  case  and  to  a  correct  under- 
standing of  every  jDoint  of  the  same  by  the  reviewing 
authority  will  be  recorded  at  length.  Testimony  taken 
before  regimental  or  garrison  courts-martial  will  not  be 
reduced  to  writing."^ 

5.  Although,  since  the  passage  of  the  act  of  Congress 
of  July  27,  1892,  "to  amend  the  Articles  of  War,  etc.," 
it  is  desirable  that  the  record  of  a  court-martial  should 
show  that  when  it  sat  in  closed  session  the  judge-advo- 
cate withdrew,  it  will  not  vitiate  the  proceedings  if 
this  is  not  expressly  stated.  When  the  record  shows 
that  the  court  was  closed,  the  presumption  is  that  it 
was  closed  in  accordance  with  the  requirements  of  law. 

6.  The  "statement  of  service"  referred  to  on  page  19, 
paragraph  3,  ante,  will  not  be  introduced  in  evidence 

'  Cir.  No.  27,  A.  G.  O..  1897.  2par.  1055,  A.  R. 


REVIEWING    AUTHORITY.  61 

nor  maae  a  part  of  the  record  of  the  trial,  but  will  be 
returned  to  the  convening  authority  with  the  record.  ^ 

7.  A  recommendation  to  clemency  will  not  be  em- 
braced in  the  body  of  the  sentence ;  but  will  be  appended 
to  the  record  after  any  exhibits  referred  to  in  the  pro- 
ceedings. Only  those  members  who  concur  in  a  recom- 
mendation should  sign  it. 

REVISION  OF  RECORD.' 

1.  "When  the  record  of  a  court  exhibits  error  in 
preparation,  or  seemingly  erroneous  conclusions,  the 
reviewing  authority  may  reconvene  the  court  for  a 
reconsideration  of  its  action,  pointing  out  defects. 
Should  the  court  concur  in  the  views  submitted,  it 
will  proceed  by  amendment  to  correct  its  errors,  and 
may  modify  or  completely  change  its  findings.  A 
reopening  of  the  case,  by  calling  or  recalling  witnesses, 
is  illegal.  "2 

2.  An  amendment  can  only  be  made  by  the  court 
when  duly  reconvened  for  the  purpose,  and  when  made 
must  be  the  act  of  the  court  as  sucli^  A  correction 
made  by  the  president  or  other  member,  or  by  the 
judge -advocate  independently  of  the  court,  and  by 
means  of  an  erasure  or  otherwise,  is  unauthorized.  If 
omissions  in  the  record  are  to  be  supplied,  the  page  and 
line  on  which  they  occur  will  be  stated  and  the  correc- 
tions given  in  full.  The  original  record  will  not  be 
interlined  nor  altered  in  any  way. 

REVIEWING  AUTHORITY. 

1.  "No  sentence  of  a  court-martial  shall  be  carried 
into  execution  until  the  same  shall  have  been  approved 
by  the  officer  ordering  the  court,  or  by  the  officer  com- 
manding for  the  time  being. "  ^ 


1  Par.  1028,  A.  R. 

2  For  form  for  revision  see  page  148,  post. 

3  Par.  1059,  A.  R. 

4  0pin.  Atty.  Genl.;  see  G.  0.  21,  A.  G.  0.,  1900. 

B104th  A.  W.;  see  G.  0.  57,  A.  G.  0.,  1892,  and  par.  213,  A.  R. 


62  REVIEWING   AUTHORITY. 

2.  The  officer  having  authority  to  confirm  the  sen- 
tence of  a  court-martial  will  state  at  the  end  of  the 
proceedings  in  each  case  his  decisions  and  orders. ' 

3.  All  sentences  of  courts-martial  may  be  confirmed 
and  carried  into  execution  by  the  officer  ordering  the 
court,  or  by  the  officer  commanding  for  the  time  being, 
where  confirmation  by  the  President,  or  by  the  com- 
manding general  in  the  field,  or  the  commander  of  the 
department,  is  not  required  by  the  Articles  of  War.^ 
In  time  of  peace,  sentences  directing  the  dismissal  of 
an  officer  or  inflicting  the  punishment  of  death  require 
confirmation  by  the  President.  ^  Proceedings  involving 
either  dismissal  or  death  will  therefore  (except  in  time 
of  war,  in  cases  mentioned  in  the  105th  and  107th  Arti- 
cles of  War) ,  be  forwarded  by  the  convening  authority 
direct  to  the  Judge -Advocate  General  for  the  action  of 
the  President. 

4.  A  military  commander  can  not  delegate  to  an  infe- 
rior or  other  officer  his  function  as  reviewing  authority 
as  conferred  by  the  104th  and  109th  Articles  of  War. 
Nor  can  he  authorize  a  staff  or  other  officer  to  subscribe 
for  him  his  decision  and  orders  on  the  proceedings. 

5.  Every  officer  authorized  to  order  a  court-martial 
has  power  to  pardon  or  mitigate  any  punishment  ad- 
judged by  it,-*  except  that  of  death, ^  or  the  dismissal  of 
an  officer.*^ 

6.  "The  power  to  pardon  or  mitigate  punishment 
imposed  by  a  court-martial,  vested  in  the  authority 
which  confirms  the  proceedings  or  the  corresponding 
authority  under  whose  jurisdiction  the  sentence  is  being 
executed,  extends  only  to  unexecuted  portions  of  a  sen- 
tence. The  fact  that  a  soldier  has  been  dishonorably 
discharged  through  his  sentence  does  not  affect  this 
power.  An  application  for  clemency  in  case  of  a  gen- 
eral prisoner  sentenced  to  confinement  in  a  penitentiary 
will  be  forwarded  to  the  Secretary  of  War  for  the  action 

1  Tar.  1057,  A.  K. 

2  lOOth  A.  W.  For  requirement  of  regtibitious  as  to  "  Officer  comiuandiuij; 
for  the  time  being,"  see  Par.  213,  A.  R. 

8  106th,  ibeth,  and  108th  id.        *  1 12th  id.        »  105th  id.         «  106th  id. 


REVIEWING    AUTHORITY.  63 

of  the  President.  The  power  to  comnmte  sentences 
imposed  by  military  tribunals,  not  being  vested  in 
military  commanders,  can  only  be  exercised  by  the 
President. "  ^ 

7.  "Any  officer  who  has  authority  to  carry  into  exe- 
cution the  sentence  of  death,  or  of  dismissal  of  an 
officer,  may  suspend  the  same  until  the  pleasure  of  the 
President  shall  be  known ;  and,  in  such  case,  he  shall 
immediately  transmit  to  the  President  a  copy  of  the 
order  of  suspension,  together  with  a  copy  of  the  pro- 
ceedings of  the  court.  "■^ 

8.  While  a  reviewing  authority  may  remit  or  miti- 
gate a  sentence,  he  can  not  change  it  so  as  to  impose  a 
punishment  of  a  different  nature;  thus,  he  can  not 
change  a  sentence  of  dishonorable  discharge  awarded 
an  enlisted  man  to  confinement  at  hard  labor ;  ^  but  a 
legal  sentence  of  dishonorable  discharge,  forfeiture  of 
all  pay  and  allowances  due,  and  confinement  at  hard 
labor  for  a  definite  period  may  be  mitigated  by  the 
authority  ai)proving  such  sentence  to  confinement  at 
hard  labor  and  forfeiture  of  all  pay  and  allowances  for 
a  period  not  to  exceed  the  period  of  confinement  awarded 
in  the  sentence.-* 

9.  ' '  The  authority  which  has  designated  the  place  of 
confinement,  or  higher  authority,  may  change  the  place 
of  confinement  of  any  prisoner  under  the  jurisdiction  of 
such  authority;"^  but  "when  the  court  has  sentenced  a 
prisoner  to  confinement  at  a  post,  no  power  is  compe- 
tent to  increase  the  punishment  by  designating  a  peni- 
tentiary as  the  place  of  confinement.""  When  a  peni- 
tentiary has  been  erroneously  designated  the  reviewing 

1  Par.  1017,  A.  R. 

•muh  A.  w. 

^As  to  authority  of  reviewiug  officer  to  change  finding,  see  page  44, 
note  I,  ante. 

4Ci.r.  48,  A.  G.  0.,  1900. 

fi  Par.  1047,  A.  R. 

*  Id.,  1043.  A  piinishment  of  confinement  in  a  penitentiary,  when  legal, 
may  be  mitigated  to  confinement  at  a  military  post. 


64  REVIEWING   AUTHORITY. 

authority  may  disapprove  it  and  designate  a  proper 
place.  ^ 

10.  When  general  courts-martial  have  properly  sen- 
tenced soldiers  to  confinement  in  a  penitentiary,'^  "de- 
partment commanders  will  designate  the  United  States 
Penitentiary  at  Fort  Leavenworth,  Kans.,  as  the  place 
of  execution  of  such  sentences  in  cases  in  which  the 
term  of  confinement  imposed  is  more  than  one  year.  If 
any  State  or  Territory  within  a  military  department 
has  made  provision  by  law  for  the  confinement  of  such 
prisoners  in  its  penitentiaries,  the  department  com- 
mander, with  the  approval  of  the  Secretary  of  War, 
may  designate  one  as  the  place  of  execution  of  sentence.  '"-^ 

11.  "When  a  sentence  of  confinement  or  forfeiture  is 
in  excess  of  the  legal  limit,  the  part  within  the  limit  is 
legal  and  may  be  executed."  "* 

12.  "  The  time  at  which  a  dishonorable  discharge  is 
to  take  effect,  as  fixed  by  a  sentence,  can  not  be  post- 
poned by  the  reviewing  officer. "  ^ 

13.  "A  sentence  to  confinement,  with  or  without 
forfeiture  of  pay,  can  not  become  operative  prior  to  the 
date  of  confirmation.  If  it  be  proper  to  take  into  con- 
sideration the  length  of  confinement  to  which  the  pris- 
oner has  been  subjected  previous  to  such  confirmation, 
it  may  be  done  by  mitigation  of  sentence. "  ^ 

14.  "An  order  remitting  a  forfeiture  of  pay  operates 
only  on  the  pay  to  become  due  subsequent  to  the  date 
of  the  order."' 

15.  "The  order  promulgating  the  proceedings  of  a 
court  and  the  action  of  the  reviewing  authority  will, 
when  practicable,  be  of  the  same  date.  When  this  is 
not  practicable,  the  order  will  give  the  date  of  the 
action  of  the  reviewing  authority  as  the  date  of  the 
beginning  of  the  sentence.  This  does  not  apply  to  sen- 
tences of  forfeiture  of  all  pay  and  allowances.  A  soldier 
awaiting  result  of  trial  will  not  be  paid  before  the 
result  is  known. "  ^ 


1  Par.  1041,  A.  R. 

4  Id.,  1044. 

'Id.,  1053. 

2  Seu  page  47,  par.  11,  ante. 

8  Id.,  1051. 

8  Id.,  1046. 

8  Par.  1042,  A.  R. 

6  Id.,  1048. 

CONFINEMENT   AFTER   TRIAL.  65 

<» 

16.  Proceedings  of  general  courts-martial  in  cases  of 
officers  and  in  important  cases  of  enlisted  men  will  be 
published  in  general  orders.  Unimportant  cases  of 
enlisted  men  will  be  published  in  special  orders.  ^ 

CON^FII^EMENT  AFTER  TRIAL. 

1.  "Enlisted  men  *  *  *  who  have  been  tried  will, 
I>rior  to  the  promulgation  of  the  result,  be  designated 
as  '  awaiting  result  of  trial ;'  enlisted  men  serving  sen- 
tences of  confinement,  not  involving  dishonorable  dis- 
charge, will  be  designated  'garrison  prisoners;  those 
sentenced  to  dishonorable  discharge,  and  to  terms  of 
confinement  in  penitentiaries  or  at  military  posts,  will 
be  designated  as  'general  prisoners.'  "  ^ 

2.  Prisoners  undergoing  sentence  of  general  court- 
martial,  and  those  confined  for  serious  offenses  will,  if 
practicable,  be  kept  apart  from  those  confined  by  sen- 
tence of  an  inferior  court,  or  for  minor  offenses.  Gen- 
eral prisoners  will  not  be  confined  with  other  prisoners 
except  in  case  of  necessity.^ 

.  8.  "  Prisoners  will  not  be  placed  in  irons  except  under 
sentence  of  a  court-martial,  or  in  the  extraordinary  case 
of  a  prisoner  who,  in  the  judgment  of  the  commanding 
officer,  is  a  desperate  or  dangerous  character,  in  which 
case  a  report  of  action  and  the  circumstances  will  be 
immediately  made  to  the  department  commander.  A 
prisoner  may  be  shackeled  or  handcuffed  while  being 
transported  from  one  post  to  another,  or  from  a  post  to 
a  penitentiary  when,  in  the  judgment  of  the  officer  in 
charge,  the  escape  of  the  prisoner  can  not  otherwise  be 
prevented."  4 

4.  "Prisoners  will  be  forwarded  from  places  of  trial 
to  posts  at  which  they  are  sentenced  to  serve  confine- 
ment only  on  orders  of  department  commanders  or 

^  For  form  for  special  order,  see  page  168,  post. 

2  Par  10()4,  A.  R. 

3  rd.,  1008.     For  special  rules  relating  to  prisoners,  see  G.  0.  55,  A.  G.  0. 
1895. 

*  Id.,  1010. 

12915 5 


66  CONFINEMENT   AFTER   TRIAL. 

higher  authority.  The  strength  of  guards  to  accom- 
pany them  will  be  limited  to  the  necessities  bt  safe 
delivery.  Orders  detailing  guards  in  charge  of  military 
prisoners  sent  to  the  United  States  Penitentiary  at  Fort 
Leavenworth,  Kans. ,  will  provide  for  the  return  journey 
of  the  guard  and  for  commutation  of  rations,  when  such 
commutation  is  necessary.  The  commanding  officer  of 
a  post  from  which  a  prisoner  is  transferred  will  send, 
under  seal,  to  the  commanding  officer  of  the  post  where 
the  sentence  of  confinement  is  to  be  executed  the  fol- 
lowing papers  in  his  case,  viz :  Discharge  papers,  if  dis- 
charged, descriptive  list,  orders  promulgating  and  modi- 
fying sentences,  copy  of  charges  and  specifications  upon 
which  convicted,  statement  of  conduct  while  under 
sentence  to  date  of  transfer,  and  a  list  of  clothing  in 
possession  of  the  prisoner  when  forwarded. "  ^ 

5,  "All  serviceable  clothing  which  belongs  to  a 
prisoner,  and  his  blankets,  will  accompany  him  to  the 
post  designated  for  his  confinement,  and  will  be  fully 
itemized  on  the  clothing  list  mentioned  in  the  preced- 
ing paragraph.  The  guard  in  charge  of  the  prisoner 
during  transfer  will  be  furnished  with  a  duplicate  of 
this  list  and  will  be  held  responsible  for  the  delivery  of 
all  articles  itemized  therein,  with  the  prisoner.  At 
least  one  serviceable  woolen  blanket  will  be  sent  with 
every  such  prisoner  so  transferred. "  '■* 

6.  "The  personal  effects  of  military  prisoners  who 
have  escaped  from  confinement,  except  such  as  possess 
some  special  value  as  keepsakes,  may  be  disposed  of  bj^ 
sale  as  in  the  case  of  effects  of  deceased  soldiers,  and 
the  ijroceeds  thereof,  together  with  any  money  left  by 
the  prisoner  in  the  hands  of  the  company  commander, 
be  turned  over  to  a  paymaster,  who  should  account  for 
the  same  in  the  manner  provided  for  paymaster's  col- 
lections. The  officer  will  take  the  paymaster's  receipt 
for  the  amount  paid  him  and  forward  the  same  to  the 
Auditor  for  the  War  Department."^ 

1  Par.  1012,  A.  R.  « Id.,  1013.  » Id.,  1014 


CONFINEMENT   AFTER    TRIAL.  67 

7.  ' '  Prisoners  will  be  allowed,  in  abatement  of  their 
terms  of  confinement,  five  days  for  each  period  of 
twenty -five  days  during  the  whole  of  which  their  con- 
duct has  been  good ;  but  abatements  thus  earned  may 
be  forfeited,  either  in  whole  or  in  part,  by  subsequent 
misconduct.  Such  forfeitures  are  determined  by  the 
commanding  officer  of  the  post  where  a  prisoner  is 
confined. " ' 

8.  "When  the  date  for  the  commencement  of  a  term 
of  confinement  imposed  by  sentence  of  a  court-martial 
is  not  expressly  fixed  by  the  sentence,  the  term  of  con- 
finement begins  on  the  date  of  the  order  promulgating 
it.  The  sentence  is  continuous  until  the  term  expires, 
except  when  the  person  sentenced  is  absent  without 
authority."^  The  word  da?/s  in  a  sentence  of  confine- 
ment, means  periods  of  twenty-four  hours,  counting 
from  guard-mounting  on  the  first  day  of  the  sentence. 

9.  "When  soldiers  awaiting  result  of  trial  or  under- 
going sentence  commit  offenses  for  which  they  are 
tried,  the  second  sentence  will  be  executed  upon  the 
expiration  of  the  first. "  ^ 

10.  Where  a  soldier,  while  undergoing  sentence  of 
confinement  imposed  without  dishonorable  discharge, 
was  tried  for  a  further  offense  and  sentenced  to  dis- 
honorable discharge  and  confinement,  the  period  of 
confinement  under  his  prior  sentence  will  terminate 
upon  the  date  of  his  dishonorable  discharge,  leaving  to 
be  executed  only  the  confinement  imposed  by  the  second 
sentence. 

11.  "A  general  prisoner,  when  released  from  confine- 
ment at  a  post,  will  be  carefully  examined  and  a  record 
of  all  marks,  scars,  and  physical  peculiarities  made  by 
a  medical  officer  on  the  outline  figure  card  used  in  the 
examination  of  recruits,  which  the  medical  officer  will 
forward  direct  to  the  Surgeon  General."-* 

I  Par.  1016,  A.  B.  a  Id.,  1049. 

a  Id.,  1046.  4  Id.,  1015. 


68  HABEAS   CORPUS. 


HABEAS  CORPUS. 


1.  "Officers  will  make  respectful  returns,  in  writing, 
to  all  writs  of  habeas  corpus  served  on  them.  When 
the  writ  is  issued  by  a  State  court  or  judge,  and  the  per- 
son held  by  the  army  officer  is  a  civilian  who  has  been 
apprehended  under  a  warrant  of  attachment  to  be  taken 
before  a  court-martial  to  testify  as  a  witness,  the  officer 
will  not  produce  the  body,  but  will,  by  his  return,  set 
forth  fully  the  authority  by  which  he  holds  the  person, 
and  allege  that  the  State  authority  is  without  jurisdic- 
tion to  issue  the  writ  of  habeas  corpus,  and  ask  to  have 
the  same  dismissed.  He  will  also  exhibit  to  the  court 
or  officer  issuing  the  writ  of  habeas  corpus  the  warrant 
of  attachment  and  the  subpoena  (and  the  proof  of  the 
service  of  the  subpoena)  on  which  the  warrant  of 
attachment  was  based,  and  also  a  certified  copy  of  the 
order  convening  the  court-martial  before  which  he  had 
been  commanded  to  take  the  person. "  ^ 

2.  "Should  a  writ  of  habeas  corpus  issued  by  a  State 
court  or  judge  be  served  upon  an  Army  officer  command- 
ing him  to  produce  an  enlisted  man  or  general  prisoner 
and  show  cause  for  his  detention,  the  officer  will  decline 
to  produce  in  court  the  body  of  the  person  named  in  the 
wi-it,  but  will  make  respectful  return'^  in  writing  to  the 
effect  that  the  man  is  a  duly  enlisted  soldier  of  the 
United  States  or  a  general  prisoner  under  sentence  of 
court-martial,  as  the  case  may  be,  and  that  the  Supreme 
Court  of  the  United  States  has  decided  that  a  magis- 
trate or  court  of  a  State  has  no  jurisdiction  in  such  a 
case. "  3 

3.  A  writ  of  habeas  corpus  issued  by  a  United  States 
court  or  judge  will  be  promptly  obeyed.  The  person 
alleged  to  be  illegally  restrained  of  his  liberty  will  be 
taken  before  the  court  from  which  the  writ  has  issued 
and  a  return*  made  setting  forth  the  reasons  for  his 

1  Par,  1073,  A.  R.       »  For  form,  see  page  170,  post.       3  Par.  1074,  A.  R. 
4  For  form,  see  page  168,  post.    For  brief  of  authorities,  wheu  the  writ  is 
applied  for  on  the  ground  of  minority,  see  page  \l\,post. 


DISPOSITION  OF   RECORDS.  69 

restraint.  The  officer  upon  whom  such  a  writ  is  served 
will  at  once  report  by  telegraph  the  fact  of  such  service 
direct  to  the  Adjutant  General  of  the  Army  and  to  the 
commanding  general  of  the  department.  ^ 

DISPOSITION  OF  RECORDS. 

1.  The  Judge -Advocate  General  revises  and  is  the 
custodian  of  the  records  of  the  proceedings  of  all 
general  courts-martial.  ^  The  original  records  of  pro- 
ceedings, with  the  decisions  and  orders  of  the  reviewing 
authorities  made  thereon,  and  also  the  records  of  pro- 
ceedings of  all  general  courts  which  require  confirma- 
tion by  the  President  but  which  have  not  been  appointed 
by  him,  will  be  forwarded  direct  to  the  Judge-Advocate 
General.  One  copy  of  the  order  promulgating  the 
action  of  the  court,  and  a  copy  of  every  subsequent 
order  affecting  the  ca^se,  will  be  forwarded  to  the  Judge- 
Advocate  General,  with  the  record  of  each  case.  When 
more  than  one  case  is  embraced  in  a  single  order,  a 
sufficient  number  of  copies  will  be  forwarded  to  enable 
one  to  be  filed  with  each  record.  The  proceedings  of 
all  courts  appointed  by  the  President  will  be  sent  direct 
to  the  Secretary  of  War.  ^ 

2.  "Applications  of  officers,  enlisted  men,  and  mili- 
tary prisoners  for  copies  of  proceedings  of  general 
courts-martial,  to  be  furnished  them  under  the  114th 
Article  of  War,  will,  when  received  by  post  or  other 
commanders,  be  forwarded  direct  to  the  Judge- Advocate 
General."'* 

3.  "Communications  relating  to  jiroceedings  of  mili- 
tary courts  on  file  in  the  Judge-Advocate  General's 
department  will  be  addressed  and  forwarded  direct  by 
department  commanders  to  the  Judge-Advocate  Gen- 
eral. In  routine  matters,  the  Judge -Advocate  General 
and  judge-advocates  may  correspond  with  each  other 
direct.  "5 

1  Par,  1075,  A.  R.  3  Par.  99:?,  A.  R.  ^  zd.,  996. 

»  Sec.  1199,  R.  S. ;  par.  991,  A.  R.  *  Id.,  995. 


70  DISPOSITION   OF   RECORDS. 

4.  Judge-advocates  of  departments  are  the  custodians 
of  the  reports  of  cases  tried  by  summary  courts  ^  and  of 
all  proceedings  of  garrison  or  regimental  courts-martial.  ^ 

5.  Post  commanders  will,  on  the  last  day  of  each 
month,  make  a  report  to  the  department  headquarters 
of  the  number  of  cases  determined  by  summary  court 
during  the  month,  setting  forth  the  offenses  committed 
and  th  i  penalties  awarded.  ^  ' '  The  complete  proceed- 
ings of  a  garrison  or  regimental  court  will  be  transmit- 
ted, without  delay,  by  the  i)ost  or  regimental  commander 
to  department  headquarters. "  ^ 

6.  The  reports  of  cases  tried  by  summary  courts  and 
records  of  other  inferior  courts  will  be  filed  in  the  office 
of  the  judge-advocate  at  the  headquarters  of  the  depart- 
ment commander  in  whose  department  the  courts  were 
held,  for  two  years,  at  the  end  of  which  time  they  may 
be  destroyed.^ 

'  Act  of  June  18, 1898,  establishing  the  summary  court;  see  page  120,  post. 

2  Act  of  March  3, 1877. 

3  Act  of  June  18,  1898,  sec.  4,  page  121,  post. 

4  Par.  1058,  A.  R. 

6  Act  of  March  3,  1877. 


INFERIOR  COURTS-MARTIAL. 


THE  SUMMARY  COTJRT.i 

1.  Composition,  etc. — The  summary  court  is  com- 
posed of  one  officer,  designated  by  the  commanding 
officer  of  a  garrison,  fort,  or  other  place,  regiment  or 
corps,  detached  battalion  or  company,  or  other  detach- 
ment, for  such  place  or  command,  or  for  each  battalion 
of  a  command.  But  the  summary  court  may  be  ap- 
pointed and  the  officer  designated  by  superior  authority 
when  by  him  deemed  desirable. 

2.  When  but  one  commissioned  officer  is  present  with 
a  command,  he  is  a  suiiimary  court  and  finally  deter- 
mines the  cases  tried  by  him.  In  such  case  no  order 
appointing  the  court  will  be  issued,  but  the  officer  will 
enter  on  the  record  that  he  is  the  "only  officer  present 
with  the  command."  In  all  other  cases  the  sentences 
must,  before  they  can  be  executed,  be  ai^proved  by  the 
officer  appointing  the  court  or  the  officer  commanding 
for  the  time  being. 

3.  The  summary-court  act  does  not  give  the  accused 
the  right  to  object  to  trial  by  summary  court  and  to 
demand  trial  by  another  court,  nor  does  it  require  that 
when  the  trial  officer  is  the  accuser  the  case  shall  be 
tried  by  another  court.  A  summary  court  can  not, 
however,  adjudge  confinement  and  forfeiture  in  excess 
of  a  period  of  one  month,  unless  the  accused  shall  before 
trial  consent  in  writing  to  trial  by  said  court,  but  in 
any  case  of  refusal  to  so  consent,  the  trial  may  be  had 
either  by  general,  regimental,  or  garrison  court-martial. 


1  Established  by  act  of  Juno  18,  1898,  and  recognized  by  the  83d  A.  W. 
See  pages  120  aud  123,  post. 

(71) 


72  THE   SUMMARY   COURT. 

or  by  said  summary  court,  but  in  case  of  trial  by  said 
summary  court  without  consent  as  aforesaid,  the  court 
shall  not  adjudge  continement  or  forfeiture  of  pay  for 
more  than  one  month. ' 

4.  But  noncommissioned  officers  can  not,  if  they  object 
thereto,  be  brought  to  trial  before  summary  courts  with- 
out the  authority  of  the  officer  competent  to  order  their 
trial  by  general  court-martial,  but  shall,  in  such  cases, 
ba  brought  to  trial  before  garrison,  regimental,  or  gen- 
eral courts-martial,  as  the  case  may  be.- 

5.  Jurisdiction. — The  summary  court  has  jurisdiction 
both  in  time  of  peace  and  of  war.  It  has  almost  entirely 
displaced  the  garrison  and  regimental  courts-martial, 
and  has  entirely  superseded  the  field  officer's  court, 
which  has  been  abolished. 

6.  As  regards  persons,  the  summary  court  can  not 
legally  try  officers,  cadets,  or  candidates  for  promotion. 
As  to  noncommissioned  officers,  see  paragraph  4,  ante. 
Over  all  other  enlisted  men  and  over  general  prisoners 
the  summary  court  has  jurisdiction. 

7.  As  regards  time  of  trial,  the  jurisdiction  of  a  sum- 
mary court  is  not  affected  by  the  time  when  cases  are 
brought  before  it,  the  requirement  of  the  law  as  to  time 
being  directory  only.  The  commanding  officer,  and  not 
the  court,  will  determine  when  and  what  cases  will  be 
brought  before  it.  Delay  in  the  trial  of  a  soldier  does 
not  invalidate  the  proceedings,  but  may  be  considered 
by  the  court  in  awarding  sentence.  * 

8.  Power. — Summary  courts  have  power  to  adminis- 
ter oaths;"*  to  hear  and  determine  cases;  and,  when 

i83d  A.  W.,  as  amended  by  act  approved  March  2,  1901,  page  123,  post. 

2  Summary  Court  Act,  page  121,  poKl.     See,  also,  page  57,  ante. 

3  Par.  1034,  A.  R. 

*  This  refers  to  oaths  of  witnesses.  The  trial  officer  himself  is  not  sworn. 
The  trial  officers  of  summary  courts,  judge-advocates  of  courts-martial,  and 
judge-advocates  of  departments  have  power  to  administer  oaths  for  purposes 
of  military  justice  and  for  other  purposes  of  military  administmtion.  (See 
.'ict  of  July  27,  1892.)  A  summary  court  is  not  empowered  to  issue  process 
of  attachment  to  compel  the  attendance  of  a  civilian  witness. 


THE   SUMMARY   COURT.  73 

satisfied  of  the  guilt  of  an  accused  party,  to  adjudge  the 
punishment  to  be  inflicted.  ^ 

9.  Procedure. — The  accused  will  be  arraigned  and 
allowed  to  plead,  according  to  court-martial  practice. 
When  the  accused  pleads  not  guilty,  witnesses  will  be 
sworn  and  evidence  received,  the  accused  being  per- 
mitted to  testify  in  his  own  behalf  and  make  a  state- 
ment, but  the  evidence  and  statement  will  not  be 
recorded. 

10.  The  summary  court,  as  soon  as  trial  is  con- 
cluded, will  record  its  findings  and  sentence  ^  in  the 
prescribed  record  and  submit  it  to  the  reviewing 
authority,  who  will  enter  his  action  thereon.  ^  When 
but  one  officer  is  present  with  a  command,  no  approval 
of  the  sentence  is  necessary.  In  time  of  peace  the 
summary  court  proceedings  will  be  recorded  in  a  book, 
but  in  time  of  war  the  prescribed  blanks  will  be  suffi- 
cient. No  other  records  of  the  proceedings  will  be 
kept,  and  the  trials  will  not  be  published  in  orders.^ 

11.  Previoas  Convictions. — Charges  submitted  for 
trial  by  a  summary  court  will  be  accompanied  by  evi- 
dence of  all  convictions  of  accused  within  the  previous 
twelve  months  and  during  the  current  enlistment, 
which  evidence  will  be  furnished  if  practicable  by  the 
officer  preferring  the  charges;  if  the  evidence  is  con- 
tained in  the  summary  court  record  book,  a  reference 
to  it  will  be  sufficient.  If  this  evidence  is  not  submit- 
ted or  cited,  the  summary  court  may  take  judicial 
notice  of  any  such  evidence  as  the  record  book  con- 
tains. ^ 

13.  Whenever,  in  determining  on  its  sentence,  a  sum- 
mary court  shall  take  into  consideration  previous 
convictions,  a  note  of  the  number  of  such  previous  con  - 
victions  will  be  made  on  the  summary  court  record. 

1  Act  of  June  18, 1898;  see  page  120  post;  and  8;'.d  A.  W.,  as  amended  by 
act  approved  March  2, 1901,  page  12.3,  iwst. 

2  For  forms  for  sentences,  see  page  158,  j)ost. 

3  See  page  149,  post ;  also  page  150,  par.  2,  post. 
*  Par.  1031,  A.  R. 

6  Id.,  1030. 


74  THE   SUMMARY   COURT. 

13.  Limit  of  Punishing  Power. — Summary  courts  are 
subject  to  the  restrictions  of  the  88d  Article  of  War.^ 

Under  this  article  inferior  courts-martial  "have 
power  to  award  punishment  not  to  exceed  confinement 
at  hard  labor  for  three  months  or  forfeiture  of  three 
months'  pay,  or  both,  and  in  addition  thereto,  in  the 
case  of  noncommissioned  officers,  reduction  to  the 
ranks,  and  in  the  case  of  first-class  privates  reduction 
to  second-class  privates:  Provided,  That  a  summary 
court  shall  not  adjudge  confinement  and  forfeiture  in 
excess  of  a  period  of  one  month  unless  the  accused 
shall  before  trial  consent  in  writing  to  trial  by  said 
court,  but  in  any  case  of  refusal  to  so  consent  the  trial 
may  be  had  either  by  general,  regimental,  or  garrison 
«court-martial,  or  by  said  summary  court,  but  in  case  of 
trial  by  said  summary  court  without  consent  as  afore- 
said, the  court  shall  not  adjudge  confinement  or  forfei- 
ture of  pay  for  more  than  one  month. "  This  is  the 
limit  of  their  x>wiUl ling  power.  For  those  offenses  for 
which  a  limit  of  punishment  has  been  prescribed,  a 
summary  court  is  restricted  to  the  kiiuU  of  punish- 
ment named,  except  as  to  the  substitutions  in  the  set- 
tled ratio  given  on  page  57,  ante. 

14.  Record. — "There  shall  be  a  summary  court  rec- 
ord kept  at  each  military  post,  and  in  the  field  at  the 
headquarters  of  the  proper  command,  in  which  shall  be 
entered  a  record  of  all  cases  heard  and  determined  and 
the  action  had  thereon.  "^ 

15.  Reviewing  Authority. — The  commanding  offi- 
cers authorized  to  approve  the  sentences  of  summary 
courts  and  superior  authority  have  power  to  remit  or 
mitigate  the  same.^ 

16.  When  the  only  officer  present  with  a  command 
sits  as  a  summary  court,  no  approval  of  the  sentence  is 

1  Par.  1035,  A.  K. ;  see  also  page  57,  ante. 

2  Act  of  June  18,  1898 ;  see  page  120,  post.  For  form  for  record  book,  see 
page  149,  post. 

^Id.,  sec.  3,  page  121,  post. 


THE   SUMMARY   COURT.  75 

required  by  law,  but  he  should  sign  the  sentence  as 
such  officer  and  date  his  signature.  ^ 

17.  Instructions  for  Post  and  Other  Commanders, 
relating  to  Summary  Courts. — Charges  for  offenses 
cognizable  by  inferior  courts  will  be  laid  before  the 
proper  commander,  who,  if  he  thinks  the  accused 
should  be  tried,  will  cause  him  to  be  brought  before 
the  summary  court  ■^  or  garrison  or  regimental  court- 
martial.  "Before  referring  charges  for  which  the 
maximum  limit  of  punivshment  that  may  be  awarded  is 
greater  than  one  month's  forfeiture  and  confinement  to 
inferior  courts  for  trial,  commanding  officers  will  cause 
the  accused  to  sign  a  statement  on  the  original  charges 
as  to  whether  or  not  he  consents  to  trial  by  summary 
court.  A  note  of  this  statement  in  each  case  will  also 
be  entered  on  the  record  of  the  summary  court  and  on 
the  monthly  report  of  trials  by  such  court." ^ 

18.  "  Commanding  officers  are  not  required  to  bring 
every  dereliction  of  duty  before  a  court  for  trial,  but 
will  endeavor  to  prevent  their  recurrence  by  admoni- 
tions, withholding  of  privileges,  and  taking  such  steps 
as  may  be  necessary  to  enforce  their  orders."^  In 
accordance  with  the  spirit  of  the  foregoing,  company 
commanders  are  authorized,  subject  to  the  control  of 
the  commanding  officer  of  the  post,  to  dispose  of  cases 
of  derelictions  of  duty  in  their  commands  which  would 
be  within  the  jurisdiction  of  inferior  courts -martial  by 
requiring  extra  tours  of  fatigue,  unless  the  soldier  con- 
cerned demands  a  trial.  This  right  to  demand  a  trial 
must  be  made  known  to  him.  ^ 

19.  "  The  summary  court  will  be  opened  at  a  stated 
hour  every  morning  except  Sunday,"  for  the  trial  of 
such  cases  as  may  properly  be  brought  before  it.    Trials 

1  Par.  1032,  A.  R.  3  Id.,  1029.  sCir.  No.  5,  A.  G.  0., 

2  Id.,  1031.  4  Id.,  1027.  Marcli  14,  1898. 

*If  it  bo  tinderstdoil  that  the  court  shall  not  sit  on  Sunday,  the  officer 
charged  with  the  duty  of  bringing  offenders  before  it  will  complj'  with  his 
duty  by  doing  so  at  tlie  first  session  of  the  court  thereafter. 


76  THE    GARRISON   COURT-MARTIAL. 

will  be  had  on  Sunday  only  when  the  exigencies  of  the 
service  make  it  necessary."  ^ 

20.  Commanding  officers  will  furnish  company  and 
other  commanders  with  copies  of  the  summary  court 
record  relating  to  men  of  their  commands,  said  copies  to 
be  certified  to  be  true  copies  by  the  commanding  officer 
or  adjutant.^ 

21.  The  name  of  each  officer  at  a  post  who  has  acted 
as  a  summary  court  will  be  reported  on  the  post  return, 
with  dates. 

THE  GARRISON  COURT-MARTIAI.. 

1.  Composition. — A  garrison  court-martial  is  com- 
posed of  three  members-^  and  a  judge -advocate.  The 
remarks  regarding  the  eligibility  of  officers  for  court- 
martial  duty,  on  page  11,  paragraphs  1-3,  ante,  apply  to 
garrison  courts. 

2.  Constitution. — Every  officer  commanding  a  garri- 
son, fort,  or  other  place  where  the  troops  consist  of 
different  corps  may  appoint  garrison  courts.'*  The  term 
"other  i^lace  "  includes  any  locality  whatever  where  the 
command  may  be,  whether  in  garrison  or  in  the  field. 
To  fulfill  the  requirement  regarding  "different  corps," 
it  is  sufficient  if  there  be  on  duty  in  the  command  a 
single  officer  or  soldier  of  another  arm  of  service  than 
that  of  which  the  main  body  is  composed. 

3.  Jurisdiction,  etc, — The  summary  court  act  has 
expressly  abolished  the  field  officer's  court,  and  has 
practically  substituted  the  summary  court  for  the  gar- 
rison and  regimental  courts-martial,  both  in  time  of 
peace  and  war,  subject  to  the  provisions  that  noncom- 
missioned officers  shall  not,  if  they  object  thereto,  be 
brought  to  trial  before  summary  courts  without  the 
authority  of  the  officer  competent  to  order  their  trial 

1  Par.  1034,  A.  R.  2  jd.,  1031.  3  82d  A.  W.  4  ja. 


( 


THE  REGIMENTAL   COURT-MARTIAL.         77 

by  general  court-martial,  but  shall  in  such  cases  be 
brought  to  trial  before  garrison,  regimental,  or  general 
courts-martial,  as  the  case  may  be ; '  and  the  83d  Article 
of  War  provides  that  a  summary  court  shall  not  adjudge 
confinement  and  forfeiture  in  excess  of  a  period  of  one 
month  unless  the  accused  shall  before  trial  consent  in 
writing  to  trial  by  said  court,  but  in  any  case  of  refusal 
to  so  consent  the  trial  may  be  had  either  by  general, 
regimental,  or  garrison  court-martial. 

4.  Whenever  it  becomes  necessary  to  convene  a  garri- 
son court-martial  the  order  appointing  it  will  state  the 
fact  giving  it  jurisdiction.^ 

5.  What  has  been  said  of  the  jurisdiction  of  summary 
courts  as  regards  persons,  offenses,  and  the  ' '  limit  of 
punishing  x>ower "  applies  equally  to  garrison  courts- 
martial.  In  other  respects  the  general  remarks  hereto- 
fore made  regarding  the  president,  members,  judge- 
advocate,  organization,  order  of  procedure,^  etc.,  of 
courts-martial  apply  to  garrison  courts,  except  when 
the  general  court  is  specially  mentioned. 

THE  REGIMENTAI.  COURT-MARTIAL.* 

1.  Composition. — The  regimental,  like  the  garrison 
court-martial,  is  composed  of  three  members  and  a 
judge-advocate;  but  in  case  of  the  regimental  court 
only  officers  of  the  offender's  regiment  or  corps  are 
eligible  for  detail  on  the  court.  ^ 

2.  Constitution. — Every  officer  commanding  a  regi- 
ment or  corps  may  appoint  a  regimental  court-martial.^ 
The  words  "corps"  includes  the  Corps  of  Engineers, 
the  Ordnance,  and  the  Signal  Corps. 

1  Act  of  June  18,  1898;  see  page  121,  post. 

2  Par.  1036,  A.  R.     For  form  for  order  and  record,  see  page  151,  post. 

3  Testimony  taken  before  a  garrison  or  regimental  court-martial  will  not 
be  reduced  to  writing.     Par.  l()o5,  A.  11. 

•*  See  page  99,  post^  note. 
6  8l8t  A.  W. 


78         THE   REGIMENTAL   COURT-MARTIAL. 

3.  Jurisdiction. — With  the  exception  that  the  regi^ 
mental  court-martial  has  jurisdiction  only  over  offend- 
ers belonging  to  the  regiment  or  corps  from  which  the 
court  is  composed,  what  has  been  said  of  the  jurisdic- 
tion, punishing  power,  and  procedure  of  garrison  courto 
applies  equally  to  regimental  courts. ' 

^  Regarding  order  for  regimental  court,  see  par.  1036,  A.  R.;  ajid  for  form 
for  record,  see  page  153,  post. 


COURTS  OF  INQUIRY. 


1.  Constitution. — A  court  of  inquiry  may  be  ordered, 
that  is,  convened,  by  the  President  or  by  any  command- 
ing officer,  but  shall  never  be  ordered  by  a  commanding 
officer  except  upon  a  demand  by  the  officer  or  soldier 
whose  conduct  is  to  be  inquired  of.^ 

2.  There  is  no  statutory  restriction  to  the  meaning  of 
the  term  "commanding  officer,"  consequently  any  com- 
mander of  the  officer  or  soldier  who  makes  the  request 
would  have  authority  to  convene  the  court,  but  if  the 
charge  to  be  inquired  into  is  beyond  the  jurisdiction  of 
a  court-martial  which  such  commander  can  convene, 
he  would  not,  by  analogies  of  the  service  in  the  admin- 
istration of  military  justice,  be  the  proper  convening 
authority  in  such  case.  It  is  the  offense  charged  which 
should  give  the  jurisdiction  to  convene  and  not  the  status 
of  the  party  in  service.  ^ 

3.  Jurisdiction. — A  court  of  inquiry  is  convened  to 
examine  into  the  nature  of  any  transaction  of,  or  accusa- 
tion or  imputation  against,  any  officer  or  soldier,  =^  and 
the  inquiry  is  confined  to  those  actually  in  the  service.'* 
It  will  not  give  an  opinion  on  the  merits  of  the  case 
inquired  of  unless  specially  ordered  to  do  so.^  The 
opinion  may  not  be  unanimous  and  a  dissenting  opinion 
is  therefore  authorized.  The  court  is  not  barred  by  any 
statute  of  limitation  in  its  investigation.  ^ 

1 115th  A.  w. 

2  Opin.  J.  A.  G.,  approved  by  Secretary  of  War,  September  19,  1874. 

8115th  A.  W. 

4  Dig.  Op.  J.  A.  G.,  §  366. 

6119th  A.  W. 

eDig.  Op.  J.  A.  G.,  §318. 

(79) 


80  COURTS   OF   INQUIRY. 

4.  Composition. — "A  court  of  inquiry  shall  consist  of 
one  or  more  officers,  not  exceeding  three,  and  a  recorder, 
to  reduce  the  proceedings  and  evidence  to  writing. "  ^ 

5.  The  form  of  the  convening  order  is  similar  to  that 
for  a  court-martial.  It  details  the  members  and  recorder 
by  name,  and  specifies  the  subject-matter  of  inquiry,  and 
directs  a  report  of  the  facts  only,  or  of  the  facts  with 
opinion. 

6.  Where  the  court  is  composed  of  two  or  more  mem- 
bers and  the  number  is  reduced  by  casualty  or  challenge, 
the  court  may  proceed  with  the  reduced  number,  but  the 
convening  authority  should  be  notified,  as  a  new  mem- 
ber may  be  detailed  and  take  his  seat  during  the  inquiry. 

7.  Organization. — It  is  the  custom  of  the  service  to 
allow  the  same  right  of  challenge  of  members  as  in 
courts-martial. 

8.  The  oath  of  the  members  of  the  court  is  adminis- 
tered by  the  recorder  and  that  of  the  recorder  by  the 
president  of  the  court.  The  oaths  are  those  prescribed 
by  the  117th  Article  of  War. 

9.  A  reporter  for  a  court  of  inquiry  is  allowed  to  be 
paid  under  current  appropriation  acts  for  the  support  of 
the  army.  The  employment  and  rate  of  compensation  is 
in  the  discretion  of  the  Secretary  of  War  only.  Reporters 
are  usually  paid  at  the  rates  fixed  by  army  regulations 
for  those  of  general  courts-martial. 

10.  Procedure. — A  court  of  inquiry  is  governed  by  the 
general  principles  of  military  law,  applying  the  analo- 
gies of  a  court-martial  where  they  are  applicable,  and 
recurring  to  adjudged  cases,  precedents,  rules,  authori- 
tative legal  opinions  and  approved  books  of  legal  expo- 
sition, where  there  is  no  pertinent  paramount  stated 
rule.  2 

11.  "A  court  of  inquiry,  and  the  recorder  thereof,  have 
the  same  power  to  summon  and  examine  witnesses  as  is 
given  to  courts-martial  and  the  judge-advocates  thereof. 
Such  witnesses  shall  take  the  same  oath  which  is  taken 

1 116th  A.  W.  2  8  Opin.  Atty.  Gen.,  346. 


COURTS   OF  INQUIRY.  81 

by  witnesses  before  coarts-martial,  and  the  party  ac- 
cused shall  be  i^ermitted  to  examine  and  cross-examine 
them,  so  as  fnlly  to  investigate  the  circumstances  in 
question. " ' 

12.  The  examination  of  witnesses  may  be  by  the  court, 
by  a  member  thereof,  or  by  the  recorder,  in  the  discre- 
tion of  the  court.  The  recorder  is  not  an  adviser  of 
the  court,  nor  a  prosecutor  before  it,  but  must  assist  the 
court,  if  it  so  desires,  in  all  matters  leading  to  correct 
conclusions  of  fact  and  law. 

13.  The  court  must  give  its  conclusions  as  to  the  facts 
as  a  finding,  and,  when  ordered,  give  an  opinion  on  the 
merits  of  the  case. 

14.  "The  proceedings  of  a  court  of  inquiry  must  be 
authenticated  by  the  signatures  of  the  recorder  and  the 
president  thereof,  and  delivered  to  the  commanding 
officer.""^  The  form  for  the  record  of  a  general  court- 
martial  should  be  followed  in  making  up  the  record  of 
the  court. 

1 118th  A.  W.  2120th  id. 

12915 6 


RETIRINa  BOARDS. 


1.  Constitution  and  Composition. — "The  Secretary  of 
War,  under  the  direction  of  the  President,  shall,  from 
time  to  time,  assemble  an  Army  retiring  board,  ^  con- 
sisting of  not  more  than  nine  nor  less  than  five  officers, 
two-fifths  of  whom  shall  be  selected  from  the  Medical 
Corps.  The  board,  excepting  the  officers  selected  from 
the  Medical  Corps,  shall  be  composed,  as  far  as  may  be, 
of  seniors  in  rank  to  the  officer  whose  disability  is  in- 
quired of."^ 

2.  The  provision  of  the  statute  as  to  the  rank  of  the 
members  is  directory  only,  and  the  decision  of  the  con- 
vening authority,  as  evidenced  by  the  selection  of  the 
members  of  the  board,  is  conclusive. 

3.  Retiring  boards  are  convened  by  the  Secretary  of 
War,  who,  in  the  absence  of  any  statutory  authority, 
under  the  custom  of  the  service,  appoints  a  recorder, 

4.  Right  to  a  Hearing. — "Except  in  cases  where  an 
officer  may  be  retired  by  the  President  upon  his  own 
application,  or  by  reason  of  his  having  served  forty-five 
years,  or  of  his  being  sixty-two  years  old,  ;no  officer  shall 
be  retired  from  active  service,  nor  shall  an  officer,  in 
any  case,  be  wholly  retired  from  the  service,  without  a 
full  and  fair  hearing  before  an  Army  retiring  board,  if, 
upon  due  summons,  he  demands  it."  ^ 

5.  This  entitles  an  officer  subject  to  be  thus  retired,  to 
appear  before  the  board,  with  counsel  if  desired,  and  to 
introduce  testimony  of  his  own,  and  to  cross-examine 

1  For  procedure  as  to  retirement  on  examination  for  promotion  see  page 
89,  and  for  form  for  record  of  retiring  board  see  page  15i,  2)ost. 

2  Sec.  1246,  R.  S. 

3  Sec.  1253,  id.;  sec.  17,  act  August  13,  1861. 

(82) 


RETIRING   BOARDS.  83 

the  witnesses  examined  by  the  board,  including  the 
medical  members  of  the  board  who  may  have  taken 
part  in  the  medical  examination  and  have  stated  or  re- 
ported to  the  board  the  result  of  the  same.  If  the  officer 
does  not  elect  to  appear  before  the  board  when  sum- 
moned, he  waives  the  right  to  a  hearing,  and  can  not 
properly  take  exception  to  a  conclusion  arrived  at  in 
his  absence.  ^ 

6.  Section  1253,  Revised  Statutes,  does  not  authorize 
the  President  to  send  a  case  back  to  a  retiring  board 
after  he  has  once  ai)proved  and  acted  upon  its  report ; 
such  approval  and  action  determines  that  the  officer 
has  had  "a  full  and  fair  hearing. ""^ 

7.  Challenge.— The  statutory  right  to  a  "fair  hear- 
ing" includes  the  right  to  a  hearing  by  an  impartial 
board,  and  therefore  the  right  to  challenge  for  cause. 

8.  Oaths. — The  members  of  a  retiring  board  "shall  be 
sworn  in  every  case  to  discharge  their  duties  honestly 
and  impartially."^  The  oath  is  administered  by  the 
recorder. 

The  following  form  of  oath  complies  with  the  statute : 
' '  You  [naming  the  members]  do  swear  that  you  will 
honestly  and  impartially  discharge  your  duties  as  mem- 
bers of  this  board  in  the  matter  now  before  you.     So 
help  you  God." 

1  Digest  Opin.  J.  A.  G.,  ^2197. 

2  Miller's  Case,  19  Ct.  Cls.,  338;  McBlair's  case,  id.,  528.  lu  both  of  these 
cases  the  officers  had  been  wholly  retired,  and  their  successors  had  been 
appointed  and  confirmed. 

Attorney  General  Devens  held  where  a  naval  officer  having  appeared 
before  an  examining  board  (organized  under  sees.  1493-1505,  R.  S.),  and, 
the  examination  being  temporarily  suspended,  was  granted  permission  to 
go  home  and  to  be  absent  until  notified  by  the  board  to  appear,  and  he 
failed  to  receive  this  notice  until  after  the  examination,  which  was  re- 
sumed during  his  absence,  had  been  concluded,  and  the  proceedings  and 
findings  of  the  board  were  api)roved  by  the  President  and  his  order  in  the 
case  duly  executed  by  the  retirement  of  the  officer  (under  sec.  1447,  R.  S.), 
but  the  vacancy  created  by  such  retirement  remained  unfilled,  and  no  rights 
of  any  other  person  had  intervened,  that  the  action  of  the  President  could 
be  revoked  and  the  officer  allowed  a  hearing.     (16  Opin.,  20.) 

3Sec.l247,  R.  S, 


84  RETIRING  BOARDS. 

9.  The  presiding  officer  of  the  board  administers  the 
following  oath  to  the  recorder : 

"You  [naming  him]  do  swear  that  yon  will,  accord- 
ing to  your  best  ability,  accurately  and  impartially 
record  the  proceedings  of  the  board  and  the  evidence  to 
be  given  in  the  case  in  hearing.     So  help  you  God." 

The  recorder's  being  sworn,  and  his  administering 
oaths,  have  no  statutory  authorization,  but  are  custom 
of  the  service.  Section  1248,  Revised  Statutes,  can  not 
properly  be  construed  as  furnishing  this  authority. 

10.  Powers. — A  retiring  board  may  inquire  into  and 
determine  the  facts  touching  the  nature  and  occasion  of 
the  disability  of  any  officer  who  appears  to  be  incajiable 
of  performing  the  duties  of  his  office,  and  shall  have 
such  powers  of  a  court-martial  and  of  a  court  of  inquiry 
as  may  be  necessary  for  that  purpose. 

11.  The  investigation  of  a  retiring  board  is  not  re- 
stricted by  any  statute  of  limitation.  It  may  inquire 
into  the  matter  of  a  disability,  however  long  since  it 
may  have  originated.' 

13.  "The  provision  that  the  board  'shall  have  such 
powers  of  a  court-martial  and  of  a  court  of  inquiry  as  may 
be  necessary, '  etc. ,  is  indefinite,  but  has  given  rise  to  but 
little  question  in  practice.  Construing  it  in  connection 
with  the  other  provisions  cited,  its  evident  intention  is 
seen  to  be  that  the  board  shall  have  and  exercise  such 
powers  of  a  '  court '  as  may  be  requisite  to  insure  a  full 
investigation,  to  afford  a  fair  hearing,  and  to  enable  it 
satisfactorily  to  determine  the  questions  referred.  Thus 
it  is  properly  authorized  and  empowered  to  call  for  and 
entertain  such  testimony  of  witnesses,  depositions,  docu- 
ments, or  papers,  as  may  be  material  to  establish  or 
illustrate  the  nature  or  extent  of  the  disability,  to  pass 
upon  questions  of  admissibility  of  evidence,  to  grant 
continuances,  to  give  the  officer  ordered  before  it  a  reas- 
onable opportunity  of  defense  if  desired,  to  find  and 
report  in  his  absence  if  he  fail  to  appear ;  and  further  to 

1  Digest  Opin.  J.  A.  G.,  §2193. 


RETIRING  BOARa)S.  85 

determine  the  relevancy  and  validity  of  challenges  to 
its  members  and  punish  acts  in  the  nature  of  contempt, 
according  to  articles  86  and  88,  if  necessary  to  an  impar- 
tial and  complete  inquiry.  But  the  board  can  not  en- 
tertain a  charge  of  a  military  offense  as  such,  nor  assume 
to  try.  The  disability  which  it  is  to  inquire  into  is  an 
existing  physical  or  mental  incapacity,  not  amoral  defect 
or  a  criminal  amenability.  If  the  case  be  one  calling 
for  trial  and  punishment,  it  should  be  referred  to  a  court- 
martial."^ 

13.  When  the  retirement  is  desired  by  the  officer  be- 
fore the  board,  it  is  proper,  at  the  beginning  of  the  hear- 
ing, for  him  to  state  under  oath  the  nature  and  cause  of 
his  disability,  the  recorder  or  board  asking  such  ques- 
tions as  will  help  to  bring  out  the  facts.  He  may  also  be 
interrogated  as  to  his  military  history,  if  it  be  deemed 
desirable  to  do  so.  When  the  retirement  is  opposed  by 
him,  he  can  not  be  required  to  testify  against  himself. 

14.  The  senior  medical  officer  of  the  board  is  the  next 
witness.  He  is  called  on  to  submit  the  result  {reduced 
to  ivriting  and  signed  hy  the  medical  officers)  of  the 
medical  examination  of  the  officer  before  the  board,  and 
is  interrogated  as  to  the  cause  and  permanency  of  the 
disability  and  the  degree  of  incapacity  for  active  service. 
The  other  medical  officer  or  officers  (if  there  be  more 
than  two)  are  similarly  examined.  Whether  the  disa- 
bility is  an  incident  of  service,'^  is  a  question  for  the  board 
to  determine  on  the  facts. 

15.  The  recorder  then  submits  the  documentary  evi- 
dence which  he  has  received  from  the  Adjutant  General's 
Office.  It  is  not  the  practice  of  retiring  boards  to  verify 
the  correctness  of  these  records  under  oath.  Other  evi- 
dence may  then  be  introduced.  The  officer  before  the 
board  has  the  right,  as  above  stated,  to  object  to  im- 
proper evidence  and  to  interrogate  the  witnesses,  and 

1  Wiutlirop's  Military  Law  and  Precedents,  page  765;  Digest  Opin.  J.  A. 
G.,  I  21!)2. 

2  As  to  what  "  incident  to  the  service  "  means,  see  page  89,  post,  note  1. 


86  RETIRING  BOARDS. 

may  himself  introduce  evidence,  if  legal,  material,  and 
relevant,  and  may  submit  a  statement  in  writing,  if  he 
desires  to  do  so. 

16.  Finding.— "When  the  board  finds  an  officer  inca- 
pacitated for  active  service  it  shall  also  find  and  report 
the  cause'  which,  in  its  judgment,  has  produced  his  in- 
capacity, and  whether  such  cause  is  an  incident  of 
service."-^ 

17.  The  board  is  closed  for  deliberation  and  determines 
whether  the  officer' before  it  for  examination  is  incapaci- 
tated for  active  service  or  not.  (It  is  not  necessary  that 
the  recorder  retire. )  When  it  finds  the  officer  incapaci- 
tated for  active  service,  it  must  also  find  and  report  the 
cause  which,  in  its  judgment,  has  i^roduced  the  inca- 
pacity, and  whether  such  cause  is  an  incident  of  serv- 
ice.'  The  board  may  modify  its  findings  and  decision 
at  any  time  before  forwarding  its  record  of  x^roceedings. 

18.  Action  on  Finding.— "The  proceedings  and  deci- 
sion of  the  board  shall  be  transmitted  to  the  Secretary  of 
War  and  shall  be  laid  by  him  before  the  President  for 
his  approval  or  disapproval  and  orders  in  the  case."" 

19.  In  any  case  in  which,  in  the  President's  judgment, 
the  investigation  has  not  been  complete,  "or  the  finding 
is  not  justified  by  the  facts,  he  may,  before  acting  there- 
on, return  the  proceedings  to  the  board  for  a  further 
inquiry  or  hearing,  or  a  correction  of  its  conclusions,  as 

1  It  has  been  held  that  the  "  cause  "  of  "  incapacity  "  inteudeil  in  section 
1249,  Revised  Statutes,  is  a  physical  cause  ;  that  moral  obliquity  was  not  had 
in  view  ;  and  that  the  matter  of  the  financial  integrity  of  the  officer  was 
beyond  the  jurisdiction  of  the  board.  So,  held  that  the  board  was  not 
authorized  to  recommend  the  retirement  of  an  officer  because  he  did  not 
pay  his  debts.  Held  also  that  the  inability  of  a  disbursing  officer  to  furnish 
a  bond  when  duly  required  to  do  so  was  not  BuflBcient  ground  for  his  re- 
tirement.    Dig.  Op.  J.  A.  G.,  g  2203. 

Held  that  the  law— sections  1248  and  1249,  Revised  Statutes— contemplated 
an  existing  and  not  a  purely  prospective  and  contingent  incapacity  ;  and 
that  an  inquiry  into  an  officer's  general  effir-iency  could  be  pertinent  only 
in  so  far  as  it  could  be  regarded  as  going  to  show  that  his  inefficiency,  if 
found,  was  the  result  of  an  impairment  of  health.     Td.,  §  2204. 

2  Sec.  1249,  R.  S.  ^  /d,^  1250. 


RETIRING   BOARDS.  87 

in  a  case  of  a  court-martial.  But  not  being  a  court,  and 
the  inquiry  not  being  a  trial,  the  board,  upon  such  re- 
vision, may,  and  should  if  so  directed,  reexamine  former 
witnesses  or  take  new  testimony. 

20.  "It  is  now  fully  settled  that  where  the  President 
has  finally  approved  the  finding  of  a  retiring  board,  and 
has  acted  thereupon  by  making  his  order  retiring  the 
officer  in  one  of  the  forms  authorized  by  the  statute,  his 
power  is  exhausted.  He  can  not  then  reopen  the  case, 
nor,  though  the  order  made  was  mistaken  or  unjust,  can 
he  revoke  it  and  substitute  another  otherwise  retiring 
the  officer.  If  he  does  so,  the  second  order  will  be  void 
and  inoperative.  The  action  of  the  President,  whose 
authority  in  such  a  case  is,  in  the  language  of  the 
Supreme  Court,  '  wholly  dependent  upon  the  letter  of 
positive  enactment,'  is  'equivalent  to  the  judgment  of 
an  appropriate  tribunal  upon  the  facts  as  found,  and 
can  not  be  disturbed.'  If  injustice  has  been  done, 
relief  can  be  afforded  by  Congress  alone.  "^ 

21.  "The  finding  of  a  retiring  board,  approved  by  the 
President,  is  conclusive  as  to  the  facts.  The  board  finds 
the  facts  and  the  President  approves  or  disapproves  the 

1  Winthrop's  Military  Law  and  Precedents,  page  767 ;  United  States  v. 
Bnrchard,  125  U.  S.,  179,  180 ;  Burchard  v.  United  States,  19  Ct.  Cls.,  137 ; 
Potts  V.  United  States,  125  U.  S.,  175  ;  lliller  v.  United  States,  19  Ct.  Cls., 
338;  McBlair  v.  United  States,  id.,  528;  19  Opin.  Atty.  Gen.,  203.  ."The 
finding  of  the  retiring  board,  approved  by  the  President,  is  the  judgment 
of  the  tribunal  created  under  the  law  to  determine  such  questions."  Potts  v. 
United  States,  supra. 

"The  finding,  approved  by  the  President,  fixes  the  fact  that  an  officer's 
incapacity  was  or  was  not  caused  by  the  service,  and  the  fact  once  fixed  can 
not  be  reviewed."     Burchard  v.  United  States,  supra. 

"Upon  the  report  of  the  board,  the  President  had  the  right  to  adopt  one 
of  three  courses  with  the  claimant ;  he  could  disapprove  the  finding,  and 
thereby  retain  the  claimant  in  the  active  service  ;  retire  him  from  active 
service,  or  wholly  retire  him  from  the  Army,  as  he  might  determine.  He 
had  a  power  to  exercise  in  the  disposition  of  the  report,  and  his  action 
thereon  made,  in  law,  the  complete  exercise  of  the  full  measure  of  author- 
ity provided  by  the  statute.  It  is  nut  a  coulinniiig  power,  but  is  performed 
to  the  extent  of  its  existence  by  the  one  act  of  the  President."  McBlair  r. 
United  States,  supra.  And  compare  Ex  parte  Randolph,  2  Brock.,  473; 
People  r.  Waynesville,  88  III.,  470,  cited  in  19  Opin.  Atty.  Gen.,  209. 


88  RETIREMENT. 

finding,  but  the  law  does  not  empower  him  to  modify 
the  finding  or  to  substitute  a  different  one.  There  is  here 
a  judicial  iiower  vested  in  the  two,  and  not  in  the  Presi- 
dent acting  singly,  and  when  the  power  has  been  once 
fully  exercised  it  is  exhausted  as  to  the  case."^ 

RETIREMENT. 

1.  "When  any  officer  has  become  incapable  of  per- 
forming the  duties  of  his  office,  he  shall  be  either  retired 
from  active  service,  or  wholly  retired  from  the  service, 
by.  the  President,  as  hereinafter  provided. '"- 

2.  ' '  When  a  retiring  board  finds  that  an  officer  is  inca- 
pacitated for  active  service,  and  that  his  incapacity  is 
the  result  of  an  incident  of  service,  and  such  decision  is 
approved  by  the  President,  said  officer  shall  be  retired 
from  active  service  and  placed  on  the  list  of  retired 
officers."^ 

3.  "When  the  board  finds  that  an  officer  is  incapaci- 
tated for  active  service,  and  that  his  incapacity  is  not 
the  result  of  any  incident  of  service,  and  its  decision  is 
approved  by  the  President,  the  officer  shall  be  retired 
from  active  service,  or  wholly  retired  from  the  service, 
as  the  President  may  determine. "  * 

1  Digest  Opin.  J.  A.  G.,  §  2206.     See  U.  S.  v.  Burchard,  126  U.  S.,  179. 

'  Sec.  1245,  R.  S.  (see  sees.  1246  to  1258,  R.  S  ,  inclusive).  This  section 
is  taken  from  sec.  16  of  "  an  act  providing  for  the  bitter  organization  of  the 
Military  Establishment,"  approved  August  .3, 1861,  wliich  prescribed,  "  that 
if  any  commissioned  officer  of  the  Army,  or  of  the  Marine  Corps,  shall  have 
become,  or  shall  hereafter  become,  incapable  of  performing  the  duties  of 
his  office,  he  shall  be  placed  upon  the  retired  list  and  withdrawn  from  active 
service  and  command  and  from  the  line  of  promotion." 

3  Sec.  1251,  R.  S.  It  does  not  affect  the  authority  to  retire  under  sec.  1251_ 
R.  S.,  that  the  incapacity  of  the  officer  may  have  been  found  to  have  re- 
suited  from  a  wound  received  by  him  while  in  the  volunteer  service  before 
entering  the  Regular  Army. 

*Sec.  1252,  R.  S.  Under  sec.  1252,  R.  S.,  an  officer  may,  in  the  discretion 
of  the  President,  legally  be  retired  by  reason  of  an  incapacity  resulting 
from  habitual  drunkenness. 

Sees.  1251  and  1252,  R.  S.,  are  based  on  sec.  17  of  the  act  cited  in  note  2, 
ante,  which  prescribed  as  follows:  "The  board,  whenever  it  finds  an  officer 
incapacitated  for  active  service,  will  report  whether,  in  its  judgment,  the 


RETIREMENT.  89 


RETIREMEIVT  UN^DER  ACT  OF  OCTOBER  1,  1890. 

1.  The  act  of  October  1,  1890,  providing  for  examina- 
tion for  promotion  in  the  Army  directs:  "  That  should 
the  officer  fail  in  his  physical  examination  and  be  found 
incapacitated  for  service  by  reason  of  physical  disability 
contracted  in  line  ^  of  duty,  he  shall  be  retired  with  the 

said  incapacity  result  from  long  and  faithful  service,  from  wounds  or 
injury  received  in  the  line  of  duty,  from  sickness  or  exposure  therein,  or 
from  any  other  incident  of  service.  If  so,  and  tlio  President  approve 
such  judgment,  the  disabled  officer  shall  thereupon  be  placed  upon  the 
list  of  retired  officers,  according  to  the  provisions  of  this  act.  If  other- 
wise, and  if  the  President  concur  in  opinion  with  the  board,  the  officer  shall 
be  retired  as  above,  either  with  his  pay  proper  alone,  or  with  his  service 
rations  alone,  at  the  discretion  of  the  President,  or  he  shall  be  wholly 
retired  from  the  service,  with  one  year's  pay  and  allowances." 

The  incapacity  mentioned  is  a  physical  incapacity.  (Dig.  Opin.  J.  A.  G., 
gg  2203,  2208.) 

1  The  phrase  "  in  line  of  duty,"  as  used  in  this  act,  should  be  construed  as 
having  the  same  meaning  with  "  incident  of  service,"  as  used  in  sec.  1249, 
R.  S. 

The  following  is  an  extract  from  a  report  of  the  Judge-Advocate  General 
(2658)  which,  although  relating  to  enlisted  men,  is  in  principle  applicable 
in  the  case  of  commissioned  officers.  The  action  of  the  War  Pcpartment  on 
this  report  was  in  effect  a  confirmation  of  the  conclusion  arrived  at: 

"Formerly  the  expression  'line  of  duty'  was  much  more  strictly  con- 
strued than  now.     Attorney  General  Gushing  explained  it  thus: 

*'  'The  phrase"  line  of  duty"  is  an  apt  one,  to  denote  that  an  act  of  duty 
performed  must  have  relation  of  causation,  mediate  or  immediate,  to  the 
wound,  the  casualty,  the  injury,  or  the  disease,  producing  disability  or 
death. 

#  *  *  *  * 

"'Every  person  who  enters  the  military  service  of  the  country — officer, 
soldier,  sailor,  or  marine  — takes  upon  himself  certain  moral  and  legal  en- 
gagements of  duty,  which  constitute  his  official  or  professional  obligations. 
While  in  the  performance  of  those  things,  which  the  law  requires  of  him 
as  military  duty,  he  is  in  the  line  of  his  duty.  But,  at  the  same  time,  though 
a  soldier  or  saiior,  he  is  not  the  less  a  man  and  a  citizen,  with  private  rights 
t(t  exercise  and  duties  to  perform  ;  and,  while  atton  ding  to  these  things,  he 
is  not  in  the  lino  of  his  public  duty.  In  addition  to  this,  a  soldier  or  sailor, 
like  any  other  man,  has  the  physical  faculty  of  doing  many  things,  which 
are  in  violation  of  duties,  either  general  or  special ;  and  in  doing  these 
things  he  is  not  acting  in  the  line  of  his  duty.  Around  all  those  acts  of  the 
soldier  or  sailor  which  are  official  in  their  nature,  the  pension  law  draws  a 
legislative  line,  and  then  they  say  to  the  soldier  or  sailor:  If,  while  per- 
forming acts  which  aro  within  that  line,  you  thereby  incur  disability  or 


90  RETIREMENT. 

rank  to  which  his  seniority  entitled  him  to  be  promoted ; 
but  if  he  should  fail  for  any  other  reason  he  shall  be 
suspended  from  promotion  for  one  year,  when  he  shall 

death,  you,  or  your  widow  or  children,  as  the  case  may  be,  shall  receive  a 
pension  or  other  allowance  ;  but  not  if  the  disability  or  death  arise  from  acts 
performed  outside  of  that  line,  that  is,  absolutely  disconnected  from,  and 
wholly  independent  of,  the  performance  of  duty.  Was  the  cause  of  dis- 
ability or  death  a  cause  within  the  line  of  duty  or  outside  of  it  ?  Was  that 
cause  appertaining  to,  dependent  upon,  or  otherwise  necessarily  and  essen- 
tially connected  with,  duty  Mithin  the  line,  or  was  it  unappurtenant,  in- 
dependent, and  not  of  necessary  and  essential  connection?  That,  in  my 
judgment,  is  the  true  test-criteriou  of  the  class  of  pension  cases  under  con- 
sideration.'    (7  Opin.  Atty.  Gen.,  H.l,  162.) 

"A  more  liberal  construction  was  the  earlier  one  of  Attorney  General 
Rush.     Upon  this  point  he  said: — 

"  'I  should  presume,  however,  that  every  officer  iu  full  commission,  and 
not  on  furlough,  must  bo  considered  iu  the  lino  of  his  duty,  although,  at 
the  moment,  no  particular  or  active  employment  is  devolved  upon  liim. 
Tlie  same  of  a  soldier  who  is  kept  in  pay,  for  it  is  presupposed  of  both  the 
one  and  the  other  that  they  are  at  all  times  prepared  for  duty;  and  it  is 
surely  of  indispensable  obligation  upon  them  to  keep  themselves  detached 
from  other  pursuits,  so  as  to  be  ready  at  a  moment  to  answer  any  call 
emanating  from  those  who  may  be  authorized  to  command  them.'  (1  Opin. 
Atty.  Gen.,  182.) 

"But  neither  of  these  views  has  been  found  to  be  sufficient,  and  there- 
fore neither  has  been  followed  in  i)ractice. 

"  By  (the  fourth  section  of)  an  act  of  March  3,  18G5  (13  Stat.,  488),  it  was 
provided: — 

"  '  That  every  noncommisioned  officer,  private,  or  other  person,  who 
has  been,  or  shall  hereafter  be,  discharged  from  the  army  of  the  United 
States  by  reason  of  wounds  received  in  battle,  on  skirmish,  on  picket,  or  in 
action,  or  in  the  line  of  duty,  shall  be  entitled  to  receive  the  same  bounty 
as  if  he  had  served  out  his  full  term.' 

"And  by  an  act  approved  April  12,  1866  (14  Stat.,  352),  it  was  declared — 

"'That  the  true  intent  and  meaning  of  the  words  "or  in  the  lino  of 
duty,"  used  in  the  fourth  section  of  the  act  approved  March  3, 1865,  *  *  * 
requires  that  the  benefit  of  the  provision  of  said  section  shall  be  extended 
to  any  enlisted  man  or  other  person  entitled  by  law  to  bounty  who  has 
been  or  may  be  discharged  by  reason  of  a  wound  received  while  actually  in 
service  under  military  orders,  not  at  the  time  on  furlovigh  or  leave  oT 
absence,  nor  engaged  in  any  unlawful  or  unauthorized  act  or  pursuit.' 

"In  this  enactment  we  have  a  legislative  construction  of  the  expression 
'in  the  line  of  duty,'  as  used  in  the  earlier  legislation  cited.  To  be  in  the 
line  of  duty,  in  tlie  sense  of  that  legislation,  the  soldier  must  bo  actually  in 
service  under  military  orders,  and  ho  must  not  be  on  furlough  nor  engaged 
in  any  unlawful  or  unauthorized  act  or  pursuit.  For  the  purpose  of  that 
legislation  this  legislative  construction  would  bo  conclusive,  but  it  is  not 


RETIREMENT.  91 

be  reexamined,  and  in  case  of  failure  on  such  reexami- 
nation he  shall  be  honorably  discharged,  with  one  year's 
pay,  from  the  Army," 

2.  All  questions  relating  to  the  physical  condition  of 
an  officer  shall  be  determined  by  the  full  board. 

The  physical  examination  will  be  thorough,  and  will 
include  the  ordinary  analysis  of  the  urine. 

Defects  of  vision,  resulting  from  errors  of  refraction, 
that  are  not  excessive,  and  that  may  be  entirely  cor- 
rected by  glasses,  do  not  disqualify,  unless  they  are  due 
to  or  are  accompanied  by  organic  disease. 

8.  When  the  board  finds  an  officer  physically  inca- 
pacitated for  service,  it  shall  conclude  the  examination 
by  finding  and  reporting  the  cause  which,  in  its  judg- 
ment, has  produced  his  disability,  and  whether  such 
disability  was  contracted  in  the  line  of  duty. 

necessarily  so  in  determining  the  soldier's  condition  in  other  connections — 
his  right  of  admission  to  the  Soldiers'  Home,  for  example.  In  determining 
his  general  military  status  or  condition  in  respect  to  the  question  under 
consideration  a  further  limitation  has  in  practice  been  recognized,  namely, 
that  the  disability  must  not  bo  the  result  of  the  unlawful  or  unauthorized 
act,  as  a  direct  or  a  contribvitory  cause.  A  circular  of  the  Surgeon  Gen- 
eral's Office,  dated  May  11,  1893,  approved  by  the  Secretary  of  War,  states 
the  matter  as  follows: 

*'  'It  is  just  to  assume  that  all  diseases  contracted  or  injuries  received 
while  an  officer  or  soldier  is  in  the  military  service  of  the  United  States 
occur  in  the  line  of  duty  unless  the  surgeon  knows,  first,  that  the  disease 
or  injury  existed  before  (-ntering  the  service;  second,  that  it  was  contracted 
while  absent  from  duty  on  furlough  or  otherwise;  or,  third,  that  it  occurred 
in  consequence  of  willful  neglect  or  immoral  conduct  of  the  sick  man 
himself.' 

"I  am  inclined  to  believe  that  the  principle  as  stated  in  the  act  of  April 
12,  18G6,  modilied  by  the  limitation  indicated,  is  as  accurate  a  general 
statement  of  the  meaning  in  military  administration  of  the  expression  'in 
the  line  of  duty'  as  can  be  given.  It  is,  however,  subject  to  exceptions. 
Thus  a  soldier  may  bo  on  furlough  and  yet  in  the  line  of  duty,  as  when  he 
is  en  route  to  his  station  at  the  expiration  of  his  furlough,  or  when  during 
his  furlough  he  is,  in  compliance  with  orders,  on  his  way  to  a  place  to 
report  his  whereabouts.  So,  certain  acts  may  in  a  measure  be  contributory 
causes  of  disability,  and  yet  not  to  such  a  degree  as  to  bring  the  case 
within  the  general  rule,  as  when  the  disability  is  the  result  of  negligence, 
but  the  negligence  is  not  of  such  a  degree  as  to  amount  to  culpable  con- 
tributory negligence.  Such  cases  can  only  be  properly  decided  on  their 
own  merits." 


92  RETIREMENT. 

4.  The  record  in  each  case  where  an  officer  is  found 
physically  disqualified  shall  be  authenticated  by  all  the 
members,  including  medical  officers,  and  the  recorder. 
In  all  other  cases  the  medical  officer  will  not  be  required 
to  sign  the  proceedings.  If  any  member  dissents  from 
the  opinion  of  the  board,  it  will  be  so  stated. 

5.  Any  officer  rejiorted  by  a  retiring  board  as  incapaci- 
tated by  reason  of  physical  disability,  the  result  of  an 
incident  of  service,  shall,  if  the  proceedings  of  said  board 
are  aj)proved  by  the  President,  be  regarded  as  physically 
unfit  for  promotion  within  the  meaning  of  section  3  of 
the  act  of  October  1,  1890,  and  will  be  retired  with  the 
rank  to  which  his  seniority  entitles  him  whenever  a 
vacancy  occurs  that  otherwise  would  result  in  his  pro- 
motion on  the.  active  list ;  provided,  that  before  the  oc- 
currence of  such  vacancy  he  shall  not  have  been  placed 
on  the  retired  list. ' ' 

6.  The  finding  of  the  board  of  examination  that  the 
officer  is  incapacitated  for  duty  is  not  per  .se  final,  but 
must  be  reported  for  the  action  of  the  Secretary  of  War 
and  passed  upon  by  him.  Where  the  finding  and  report  of 
the  board  have  been  approved  but  not  yet  executed  by 
actual  retirement,  there  may  intervene  contingencies 
which  would  supersede  such  proceeding — as  the  trial 
and  dismissal  of  the  officer  by  court-martial,  or  the  aris- 
ing of  new  causes  which  might  make  proper  that  the 
question  of  his  disability  be  inquired  into  by  a  retiring 
board  convened  under  section  1246,  Revised  Statutes. 
But  unless  some  such  new  occasion  and  ground  of  dis- 
qualification be  presented,  the  action  of  the  Secretary 
of  War,  in  approving  the  report,  remains  final  and  ex- 
haustive, and  the  officer  is  entitled  to  be  retired  under 
the  act  of  1890,  and  can  not  legally  be  ordered  before 
such  retiring  board.  ^ 

^G.  0.  41,  A.  G.  0.,  1897,  which  also  contains  detailed  instructions  as  to 
procedure  of  board  of  examinations  in  general. 
2  Digest  Opin.  J.  A.  G.,  §  2207. 


ARTICLES  OF  WAR. 


Section  1342,  R.  S.  The  armies  of  the  United  States 
shall  be  governed  by  the  following  rules  and  articles. 
The  word  officer,  as  used  therein,  shall  be  understood  to 
designate  commissioned  officers,  the  word  soldier  shall  be 
understood  to  include  noncommissioned  officers,  musi- 
cians, artificers,  and  privates,  and  other  enlisted  men, 
and  the  convictions  mentioned  therein  shall  be  under- 
stood to  be  convictions  by  court-martial. 

Article  1 .  Every  officer  now  in  the  Army  of  the  United 
States  shall,  within  six  months  from  the  passing  of  this 
act,  and  every  officer  hereafter  appointed  shall ,  before  he 
enters  upon  the  duties  of  his  office,  subscribe  these  rules 
and  articles. 

Art.  2.  These  rules  and  articles  shall  be  read  to  every 
enlisted  man  at  the  time  of,  or  within  six  days  after,  his 
enlistment,  and  he  shall  thereupon 'take  an  oath  or  affir- 
mation, in  the  following  form :  "I,  A.  B.,  do  solemnly 
swear  (or  affirm)  that  I  will  bear  true  faith  and  alle- 
giance to  the  United  States  of  America ;  that  I  will  serve 
them  honestly  and  faithfully  against  all  their  enemies 
whomsoever;  and  that  I  will  obey  the  orders  of  the 
President  of  the  United  States  and  the  orders  of  the 
officers  appointed  over  me,  according  to  the  rules  and 
articles  of  war."  This  oath  may  be  taken  before  any 
commissioned  officer  of  the  Army. 

Art.  3.  Every  officer  who  knowingly  enlists  or  mus- 
ters into  the  military  service  any  minor  over  the  age  of 
16  years  without  the  written  consent  of  his  parents  or 
guardians,  or  any  minor  under  the  age  of  16  years,  or 
any  insane  or  intoxicated  persons,  or  any  deserter  from 
the  military  or  naval  service  of  the  United  States,  or 
any  person  who  has  been  convicted  of  any  infamous 


94  ARTICLES   OF   WAR. 

criminal  offense,  shall,  upon  conviction,  be  dismissed 
from  the  service,  or  suffer  such  other  punishment  as  a 
court-martial  may  direct. 

Art.  4.  No  enlisted  man,  duly  sworn,  shall  be  dis- 
charged from  the  service  without  a  discharge  in  writing, 
signed  by  a  fifeld  officer  of  the  regiment  to  which  he 
belongs,  or  by  the  commanding  officer,  when  no  field 
officer  is  present ;  and  no  discharge  shall  be  given  to  any 
enlisted  man  before  his  term  of  service  has  expired, 
except  by  order  of  the  President,  the  Secretary  of  War, 
the  commanding  officer  of  a  department,  or  by  sentence 
of  a  general  court-martial. 

Art.  5.  Any  officer  who  knowing!  y  musters  as  a  soldier 
a  person  who  is  not  a  soldier  shall  be  deemed  guilty  of 
knowingly  making  a  false  muster,  and  punished  accord- 
ingly. 

Art.  6.  Any  officer  who  takes  money,  or  other  thing, 
by  way  of  gratification,  on  mustering  any  regiment, 
troop,  battery,  or  company,  or  on  signing  muster  rolls, 
shall  be  dismissed  from  the  service,  and  shall  thereby  be 
disabled  to  hold  any  office  or  employment  in  the  service 
of  the  United  States. 

Art.  7.  Every  officer  commanding  a  regiment,  an  in- 
dependent troop,  battery,  or  company,  or  a  garrison, 
shall,  in  the  beginning  of  every  month,  transmit  through 
the  proper  channels,  to  the  Department  of  War,  an 
exact  return  of  the  same,  specifying  the  names  of  the 
officers  then  absent  from  their  posts,  with  the  reasons 
for  and  the  time  of  their  absence.  And  any  officer  who, 
through  neglect  or  design,  omits  to  send  such  returns, 
shall,  on  conviction  thereof,  be  punished  as  a  court- 
martial  may  direct. 

Art.  8.  Every  officer  who  knowingly  makes  a  false 
return  to  the  Department  of  War,  or  to  any  of  his  supe- 
rior officers,  authorized  to  call  for  such  returns,  of 
the  state  of  the  regiment,  troop,  or  company,  or  garri- 
son under  his  command ;  or  of  the  arms,  ammunition, 
clothing,  or  other  stores  thereunto   belonging,  shall. 


ARTICLES    OF    WAR.  95 

on  conviction  thereof  before  a  court-martial,  be  cash- 
iered. ^ 

Art.  9.  All  public  stores  taken  from  the  enemy  shall 
be  secured  for  the  service  of  the  United  States;  and 
for  neglect  thereof  the  commanding  officer  shall  be 
answerable. 

Art.  10.  Every  officer  commanding  a  troop,  battery, 
or  company,  is  charged  with  the  arms,  accoutrements, 
ammunition,  clothing,  or  other  military  stores  belong- 
ing to  his  command,  and  is  accountable  to  his  colonel 
in  case  of  their  being  lost,  spoiled,  or  damaged  other- 
wise than  by  unavoidable  accident,  or  on  actual  service. 

Art,  11.  Every  officer  commanding  a  regiment  or  an 
independent  troop,  battery,  or  company,  not  in  the 
field,  may,  when  actually  quartered  with  such  com- 
mand, grant  furloughs  to  the  enlisted  men,  in  such 
numbers  and  for  such  time  as  he  shall  deem  consistent 
with  the  good  of  the  service.  Every  officer  command- 
ing a  regiment,  or  an  independent  troop,  battery,  or 
company,  in  the  field,  may  grant  furloughs  not  exceed- 
ing thirty  days  at  one  time,  to  five  per  cent  of  the 
enlisted  men,  for  good  conduct  in  the  line  of  duty,  but 
subject  to  the  approval  of  the  commander  of  the  forces 
of  which  said  enlisted  men  form  a  part.  Every  com- 
pany officer  of  a  regiment,  commanding  any  troop, 
battery,  or  company  not  in  the  field,  or  commanding  in 
any  garrison,  fort,  post,  or  barrack,  may,  in  the  absence 
of  his  field  officer,  gi-ant  furloughs  to  the  enlisted  men, 
for  a  time  not  exceeding  twenty  days  in  six  months,  and 
not  to  more  than  two  persons  to  be  absent  at  the  same 
time. 

Art.  12.  At  every  muster  of  a  regiment,  troop,  bat- 
tery, or  company,  the  commanding  officer  thereof  shall 
give  to  the  mustering  officer  certificates,  signed  by  him- 
self, stating  how  long  absent  officers  have  been  absent 
and  the  reasons  of  their  absence.     And  the  commanding 

'"Cashiered"  and  "dismissed  from  the  service"  are  now  considered 
practically  synonymous. 


96  ARTICLES   OF   WAR. 

officer  of  every  troop,  battery,  or  company  shall  give 
like  certificates,  stating  how  long  absent  noncommis- 
sioned officers  and  private  soldiers  have  been  absent 
and  the  reasons  of  their  absence.  Such  reasons  and 
time  of  absence  shall  be  inserted  in  the  muster  rolls 
opposite  the  names  of  the  respective  absent  officers  and 
soldiers,  and  the  certificates,  together  with  the  muster 
rolls,  shall  be  transmitted  by  the  mustering  officer  to 
the  Department  of  War  as  speedily  as  the  distance  of 
the  place  and  muster  will  admit. 

Art.  13.  Every  officer  who  signs  a  false  certificate, 
relating  to  the  absence  or  pay  of  an  officer  or  soldier, 
shall  be  dismissed  from  the  service. 

Art.  14.  Any  officer  who  knowingly  makes  a  false 
muster  of  man  or  horse,  or  who  signs,  or  directs,  or 
allows  the  signing  of  any  muster  roll,  knowing  the 
same  to  contain  a  false  muster,  shall,  upon  jn-oof  thereof 
by  two  witnesses,  before  a  court-martial,  be  dismissed 
from  the  service,  and  shall  thereby  be  disabled  to  hold 
any  office  or  employment  in  the  service  of  the  United 
States. 

Art.  15.  Any  officer  who,  willfully  or  through  neg- 
lect, suffers  to  be  lost,  sj^oiled,  or  damaged,  any  military 
stores  belonging  to  the  United  States,  shall  make  good 
the  loss  or  damage,  and  be  dismissed  from  the  service. 

Art.  16.  Any  enlisted  man  who  sells,  or  willfully  or 
through  neglect  wastes  the  ammunition  delivered  out 
to  him,  shall  be  punished  as  a  court-martial  may  direct. 

Art.  17.  Any  soldier  who  sells,  or  through  neglect 
loses  or  spoils  his  horse,  arms,  clothing,  or  accoutre- 
ments, shall  be  punished  as  a  court-martial  may  ad- 
judge, subject  to  such  limitations  as  may  be  prescribed 
by  the  President  by  virtue  of  the  power  vested  in  him.' 

Art.  18.  Any  officer  commanding  in  any  garrison, 
fort,  or  barracks  of  the  United  States  who,  for  his  pri- 
vate advantage,  lays  any  duty  or  imposition  upon,  or  is 

117th  A.  W.,  as  amended  by  act  of  July  27,  1892;  see  G.  0.  57,  A.  G.  0., 


ARTICLES   OF   WAR.  97 

interested  in,  the  sale  of  any  victuals,  liqnors,  or  other 
necessaries  of  life,  brought  into  such  garrison,  fort,  or 
barracks,  for  the  use  of  the  soldiers,  shall  be  dismissed 
from  the  service. 

Art.  19.  Any  officer  who  uses  contemptuous  or  disre- 
spectful words  against  the  President,  the  Vice-President, 
the  Congress  of  the  United  States,  or  the  chief  magis- 
trate or  legislature  of  any  of  the  United  States  in  which 
he  is  quartered,  shall  be  dismissed  from  the  service,  or 
otherwise  punished,  as  a  court-martial  may  direct. 
Any  soldier  who  so  offends  shall  be  punished  as  a  court- 
martial  may  direct. 

Art.  20.  Any  officer  or  soldier  who  behaves  himself 
with  disrespect  toward  his  commanding  officer  shall  be 
punished  as  a  court-martial  may  direct. 

Art.  21.  Any  officer  or  soldier  who,  on  any  pretense 
whatsoever,  strikes  his  superior  officer,  or  draws  or  lifts 
up  any  weapon,  or  offers  any  violence  against  hjm,  being 
m  the  execution  of  his  office,  or  disobej  s  any  lawful  com- 
mand of  his  superior  officer, '  shall  suffer  death,  or  such 
other  punishment  as  a  court-martial  may  direct. 

Art.  22.  Any  officer  or  soldier  who  begins,  excites, 
causes,  or  joins  in  any  mutiny  or  sedition,  in  any  troop, 
Dattery,  company,  party,  post,  detachment,  or  guard, 
shall  suffer  death,  or  such  other  punishment  as  a  court- 
martial  may  direct. 

Art.  23.  Any  officer  or  soldier  who,  being  present  at 
any  mutiny  or  sedition,  does  not  use  his  utmost  endeavor 
to  suppress  the  same,  or  having  knowledge  of  any  in- 
tended mutiny  or  sedition,  does  not,  without  delay,  give 
information  thereof  to  his  commanding  officer,  shall 
suffer  death,  or  such  other  punishment  as  a  court-martial 
may  direct. 

Art.  24.  All  officers,  of  what  condition  soever,  have 
power  to  part  and  quell  all  quarrels,  frays,  and  disorders, 
whether  among  persons  belonging  to  his^  own  or  to 

1  Disobedience  of  an  order  of  a  noncommissioned  oflRcer  should  be  charged 
under  the  62d  article  ;  see  form  d,  page  132,  post. 

2  Sic  in  Revised  Statutes. 

12915 7 


98  ARTICLES   OF   WAR. 

another  corps,  regiment,  troop,  battery,  or  company,  and 
to  order  officers  into  arrest,  and  noncommissioned  offi- 
cers and  soldiers  into  confinement,  who  take  part  in  the 
same,  until  their  proper  superior  officer  is  acquainted 
therewith.  And  whosoever,  being  so  ordered,  refuses 
to  obey  such  officer  or  noncommissioned  officer,  or  draws 
a  weapon  upon  him,  shall  be  punished  as  a  court-martial 
may  direct. 

Art.  25.  No  officer  or  soldier  shall  use  any  reproachful 
or  provoking  speeches  or  gestures  to  another.  Any  offi- 
cer who  so  offends  shall  be  put  in  arrest.  Any  soldier 
who  so  offends  shall  be  confined,  and  required  to  ask 
pardon  of  the  party  offended  in  the  presence  of  his  com- 
manding officer. 

Art.  26.  No  officer  or  soldier  shall  send  a  challenge  to 
another  officer  or  soldier  to  fight  a  duel,  or  accept  a 
challenge  so  sent.  Any  officer  who  so  offends  shall  be 
dismissed  from  the  service.  Any  soldier  who  so  offends 
shall  suffer  such  punishment  as  a  court-martial  may 
direct. 

Art.  27.  Any  officer  or  noncommissioned  officer,  com- 
manding a  guard,  who,  knowingly  and  willingly,  suffers 
any  person  to  go  forth  to  fight  a  duel  shall  be  punished 
as  a  challenger ;  and  all  seconds  or  promoters  of  duels, 
and  carriers  of  challenges  to  fight  duels,  shall  be  deemed 
principals,  and  punished  accordingly.  It  shall  be  the 
duty  ofany  officer  commanding  an  army,  regiment,  troop, 
battery,  company,  post,  or  detachment,  who  knows  or 
has  reason  to  believe  that  a  challenge  has  been  given  or 
accepted  by  any  officer  or  enlisted  man  under  his  com- 
mand, immediately  to  arrest  the  offender  and  bring  him 
to  trial. 

Art.  28.  Any  officer  or  soldier  who  upbraids  another 
officer  or  soldier  for  refusing  a  challenge  shall  himself 
be  punished  as  a  challenger ;  and  all  officers  and  soldiers 
are  hereby  discharged  from  any  disgrace  or  opinion  of 
disadvantage  which  might  arise  from  their  having  re- 
fused to  accept  challenges,  as  they  will  only  have  acted 


ARTICLES   OF  WAR.  99 

in  obedience  to  the  law,  and  have  done  their  duty  as  good 
soldiers,  who  subject  themselves  to  discipline. 

Art.  29.  Any  officer  who  thinks  himself  wronged  by 
the  commanding  officer  of  his  regiment,  and,  upon  due 
application  to  such  commander,  is  refused  redress,  may 
complain  to  the  general  commanding  in  the  State  or  Ter- 
ritory where  such  regiment  is  stationed.  The  general 
shall  examine  into  said  complaint  and  take  proper  meas- 
ures for  redressing  the  wrong  complained  of;  and  he 
shall,  as  soon  as  possible,  transmit  to  the  Department  of 
War  a  true  statement  of  such  complaint,  with  the  pro- 
ceedings had  thereon. 

Art.  30.  Any  soldier  who  thinks  himself  wronged  by 
any  officer  may  complain  to  the  commanding  officer  of 
his  regiment,  who  shall  summon  a  regimental  court- 
martial  for  the  doing  of  justice  to  the  complainant. 
Either  party  may  appeal  from  such  regimental  court- 
martial  to  a  general  court-martial;  but  if,  upon  such 
second  hearing,  the  appeal  appears  to  be  groundless  and 
vexatious,  the  party  appealing  shall  be  punished  at  the 
discretion  of  said  general  court-martial.' 

Art.  31.  Any  officer  or  soldier  who  lies  out  of  his 
quarters,   garrison,  or  camp,  without  leave  from  his 

iThe  "regimental  court-martial,"  tinder  the  30th  A.  W.,  can  not  be  used 
as  a  substitute  for  a  general  court-martial  or  court  of  inquiry,  for  it  can  not 
try  an  officer  nor  make  an  investigation  for  the  purpose  of  determining 
whether  he  shall  be  brought  to  trial.  When,  if  the  soldier's  complaint 
should  be  sustained,  the  only  redress  would  be  a  reprimand  to  the  officer, 
the  matter  would  not  bo  within  the  jurisdiction  of  this  court.  It  can  only 
investigate  such  matters  as  are  susceptible  to  redress  by  the  doing  of  jus- 
tice to  the  complainant ;  that  is,  when  in  some  way  he  can  be  set  right  by 
putting  a  stop  to  the  wrongful  condition  which  the  officer  has  caused  to 
exist.  Erroneous  stoppages  of  pay,  irregularity  of  detail,  the  apparent  re- 
quirement of  more  labor  than  from  any  other  soldiers,  and  the  like,  might 
in  this  way  be  investigated  and  the  wrongful  condition  put  an  end  to.  The 
court  will  in  such  cases  record  the  evidence  and  its  conclusions  of  fact,  and 
recommend  the  action  to  be  taken.  The  members  of  the  court  (and  the 
judge-advocate)  will  be  sworn  faithfully  to  perform  their  duties  as  members 
(and  judge-advocate)  of  the  court,  and  the  proceedings  will  be  recorded,  as 
nearly  as  practicable,  in  the  same  manner  as  the  proceedings  of  ordinary 
courts-martial. 


100  ARTICLES   OF   WAR. 

superior  oflBcer,  shall  be  punished  as  a  court-martial 
may  direct. 

Art.  32.  Any  soldier  who  absents  himself  from  his 
troop,  battery,  company,  or  detachment,  without  leave 
from  his  commanding  officer,  shall  be  punished  as  a 
court-martial  may  direct. 

Art.  33.  Any  officer  or  soldier  who  fails,  except  when 
prevented  by  sickness  or  other  necessity,  to  repair,  at 
the  fixed  time,  to  the  place  of  parade,  exercise  or  other 
rendezvous  appointed  by  his  commanding  officer,  or  goes 
from  the  same,  without  leave  from  his  commanding  of- 
ficer, before  he  is  dismissed  or  relieved,  shall  be  punished 
as  a  court-martial  may  direct. 

Art,  34.  Any  soldier  who  is  found  one  mile  from  camp, 
without  leave  in  writing  from  his  commanding  officer, 
shall  be  punished  as  a  court-martial  may  direct. 
•  Art.  35.  Any  soldier  who  fails  to  retire  to  his  quar- 
ters or  tent  at  the  beating  of  retreat,  shall  be  punished 
according  to  the  nature  of  his  offense. 

Art.  36.  No  soldier  belonging  to  any  regiment,  troop, 
battery,  or  company  shall  hire  another  to  do  his  duty  for 
him,  or  be  excused  from  duty,,  except  in  cases  of  sick- 
ness, disability,  or  leave  of  absence.  Every  such  soldier 
found  guilty  of  hiring  his  duty,  and  the  person  so  hired 
to  do  another's  duty,  shall  be  punished  as  a  court- 
martial  may  direct. 

Art.  37.  Every  noncommissioned  officer  who  connives 
at  such  hiring  of  duty  shall  be  reduced.  Every  officer 
who  knows  and  allows  such  practices  shall  be  punished 
as  a  court -martial  may  direct. 

Art.  38.  Any  officer  who  is  found  drunk  on  his  guard, 
party,  or  other  duty,  shall  be  dismissed  from  the  service. 
Any  soldier  who  so  offends  shall  suffer  such  punishment 
as  a  court-martial  may  direct.  No  court-martial  shall 
sentence  any  soldier  to  be  branded,  marked,  or  tattooed. 

Art.  39.  Any  sentinel  who  is  found  sleeping  upon  his 
post,  or  who  leaves  it  before  he  is  regularly  relieved, 


ARTICLES   OF   WAR.  101 

shall  suffer  death  or  such  other  puniqhiue;?ii  k^.  a /'courts 
martial  may  direct.  .  ,    '"    =-    ^  ^    *^    > 

Art.  40.  Any  officer  or  soldier>rhq,'^uits]h£is'giTaa:''d,> 
platoon,  or  division,  without  leave  from  Ills  supeir:ior;6^-; 
ficer,  except  in  a  case  of  urgent  necessity,  shall  be  pun- 
ished as  a  court-martial  may  direct. 

Art,  41.  Any  officer  who,  by  any  means  whatsoever, 
occasions  false  alarms  in  camp,  garrison,  or  quarters, 
shall  suffer  death,  or  such  other  punishment  as  a  court- 
martial  may  direct. 

Art.  43.  Any  officer  or  soldier  who  misbehaves  him- 
self before  the  enemy,  runs  away,  or  shamefully  aban- 
dons any  fort,  post,  or  guard,  which  he  is  commanded 
to  defend,  or  speaks  words  inducing  others  to  do  the 
like,  or  casts  away  his  arms  or  ammunition,  or  quits  his 
post  or  colors  to  plunder  or  pillage,  shall  suffer  death, 
or  such  other  punishment  as  a  court-martial  may  direct. 

Art.  43.  If  any  commander  of  any  garrison,  fortress, 
or  post  is  compelled,  by  the  officers  and  soldiers  under 
his  command,  to  give  up  to  the  enemy  or  to  abandon 
it,  the  officers  or  soldiers  so  offending  shall  suffer  death, 
or  such  other  punishment  as  a  court-martial  may  direct. 

Art.  44.  Any  person  belonging  to  the  armies  of  the 
United  States  who  makes  known  the  watchword  to  any 
person  not  entitled  to  receive  it,  according  to  the  rules 
and  discipline  of  war,  or  presumes  to  give  a  parole  or 
watchword  different  from  that  which  he  received,  shall 
suffer  death,  or  such  other  punishment  as  a  court-mar- 
tial may  direct. 

Art.  45.  Whosoever  relieves  the  enemy  with  money, 
victuals,  or  ammunition,  or  knowingly  harbors  or  pro- 
tects an  enemy,  shall  suffer  death,  or  such  other  punish- 
ment as  a  court-martial  may  direct. 

Art.  46.  Whosoever  holds  correspondence  with,  or 
gives  intelligence  to,  the  enemy,  either  directly  or  indi- 
rectly, shall  suffer  death,  or  such  other  punishment  as 
a  court-martial  may  direct. 

Art.  47.  Any  officer  or  soldier  who,  having  received 
pay,  or  having  been  duly  enlisted  in  the  service  of  the 


10^  ARTICLES   OF   WAR. 

United  States,  deserts  the  same,  shall,  in  time  of  war, 
suffer  death,  or  such  other  punishment  as  a  court-martial 
may  direct ;  and  in  time  of  peace,  any  punishment,  ex- 
cepting dieath:  Which  a  court-martial  may  direct. 

Art.  48.  Every  soldier  who  deserts  the  service  of  the 
United  States  shall  be  liable  to  serve  for  such  period  as 
shall,  with  the  time  he  may  have  served  previous  to  his 
desertion,  amount  to  the  full  term  of  his  enlistment; 
and  such  soldier  shall  be  tried  by  a  court-martial  and 
punished,  although  the  term  of  his  enlistment  may  have 
elapsed  previous  to  his  being  apprehended  and  tried. 

Art.  49.  Any  officer  who,  having  tendered  his  resigna- 
tion, quits  his  post  or  proper  duties,  without  leave  and 
with  intent  to  remain  permanently  absent  therefrom, 
prior  to  due  notice  of  the  acceptance  of  the  same,  shall 
be  deemed  and  punished  as  a  deserter. 

Art.  50.  No  noncommissioned  officer  or  soldier  shall 
enlist  himself  in  any  other  regiment,  troop,  or  company, 
without  a  regular  discharge  from  the  regiment,  troop, 
or  company  in  which  he  last  served,  on  a  penalty  of 
being  reputed  a  deserter,  and  suffering  accordingly. 
And  in  case  any  officer  shall  knowingly  receive  and 
entertain  such  noncommissioned  officer  or  soldier,  or 
shall  not,  after  his  being  discovered  to  be  a  deserter, 
immediately  confine  him  and  give  notice  thereof  to  the 
corps  in  which  he  last  served,  the  said  officer  shall,  by  a 
court-martial,  be  cashiered. 

Art.  51.  Any  officer  or  soldier  who  advises  or  per- 
suades any  other  officer  or  soldier  to  desert  the  service 
of  the  United  States  shall,  in  time  of  war,  suffer  death, 
or  such  other  punishment  as  a  court-martial  may  direct ; 
and,  in  time  of  peace,  any  punishment,  excepting  death, 
which  a  court-martial  may  direct. 

Art.  52.  It  is  earnestly  recommended  to  all  officers  and 
soldiers  diligently  to  attend  divine  service.  Any  officer 
who  behaves  indecently  or, irreverently  at  any  place  of 
divine  worship  shall  be  brought  before  a  general  court- 
martial,  there  to  be  publicly  and  severely  reprimanded 
by  the  president  thereof.     Any  soldier  who  so  offends 


ARTICLES   OF   WAR.  103 

shall,  for  his  first  offense,  forfeit  one-sixth  of  a  dollar ; 
for  each  further  offense  he  shall  forfeit  a  like  snm,  and 
shall  be  confined  twenty-four  hours.  The  money  so  for- 
feited shall  be  deducted  from  his  next  pay,  and  shall  be 
applied,  by  the  captain  or  senior  officer  of  his  troop, 
battery,  or  company,  to  the  use  of  the  sick  soldiers  of 
the  same. 

Art.  53.  Any  officer  who  uses  any  profane  oath  or 
execration  shall,  for  each  offense,  forfeit  and  pay  one 
dollar.  Any  soldier  who  so  offends  shall  incur  the 
penalties  provided  in  the  preceding  article;  and  all 
moneys  forfeited  for  such  offenses  shall  be  applied  as 
therein  provided. 

Art.  54.  Every  officer  commanding  in  quarters,  garri- 
son, or  on  the  march,  shall  keep  good  order,  and,  to  the 
utmost  of  his  power,  redress  all  abuses  or  disorders 
which  may  be  committed  by  any  officer  or  soldier  under 
his  command ;  and  if,  upon  complaint  made  to  him  of 
officers  or  soldiers  beating  or  otherwise  ill-treating  any 
person,  disturbing  fairs  or  markets,  or  committing  any 
kind  of  riot,  to  the  disquieting  of  the  citizens  of  the 
United  States,  he  refuses  or  omits  to  see  justice  done  to 
the  offender,  and  reparation  made  to  the  party  injured, 
so  far  as  part  of  the  offender's  pay  shall  go  toward  such 
reparation,  he  shall  be  dismissed  from  the  service,  or 
otherwise  punished  as  a  court-martial  may  direct. 

Art.  55.  All  officers  and  soldiers  are  to  behave  them- 
selves orderly  in  quarters  and  on  the  march ;  and  who- 
ever commits  any  waste  or  spoil,  either  in  walks  or  trees, 
parks,  warrens,  fish  ponds,  houses,  gardens,  grain  fields, 
inclosures,  ormeadows,  or  maliciously  destroys  any  prop- 
erty whatsoever  belonging  to  inhabitants  of  .the  United 
States  (unless  by  order  of  a  general  officer  commanding 
a  separate  army  in  the  field),  shall,  besides  such  penalties 
as  he  may  be  liable  to  by  law,  be  punished  as  a  court- 
martial  may  direct. 

Art.  56.  Any  officer  or  soldier  who  does  violence  to 
any  person  bringing  provisions  or  other  necessaries  to 


104  ARTICLES   OF   WAR. 

the  camp,  garrison,  or  quarters  of  the  forces  of  the 
United  States  in  foreign  parts,  shall  suffer  death,  or  such 
other  punishment  as  a  court-martial  may  direct. 

Art.  57.  Whosoever,  belonging  to  the  armies  of  the 
United  States  in  foreign  parts,  or  at  any  place  within 
the  United  States  or  their  Territories  during  rebellion 
against  the  supreme  authority  of  the  United  States, 
forces  a  safe-guard,  shall  suffer  death. 

Art.  58.  In  time  of  war,  insurrection,  or  rebellion, 
larceny,  robbery,  burglary,  arson,  mayhem,  manslaugh- 
ter, murder,  assault  and  battery  with  intent  to  kill, 
wounding,  by  shooting  or  stabbing,  with  an  intent  to 
commit  murder,  rape,  or  an  assault  and  battery  with  an 
intent  to  commit  rape,  shall  be  punishable  by  the  sen- 
tence of  a  general  court-martial,  when  committed  by 
persons  in  the  military  service  of  the  United  States,  and 
the  punishment  in  any  such  case  shall  not  be  less  than 
the  punishment  provided,  for  the  like  offense,  by  the  laws 
of  the  State,  Territory,  or  District  in  which  such  offense 
may  have  been  committed. 

Art.  59.  When  any  officer  or  soldier  is  accused  of  a 
capital  crime,  or  of  any  offense  against  the  person  or 
property  of  any  citizen  of  any  of  the  United  States 
which  is  punishable  by  the  laws  of  the  land,  the  com- 
manding officer  and  the  officers  of  the  regiment,  troop, 
battery,  company,  or  detachment  to  which  the  person 
so  accused  belongs  are  required,  except  in  time  of  war, 
upon  application  duly  mkde  by  or  in  behalf  of  the  party 
injured,  to  use  their  utmost  endeavors  to  deliver  him 
over  to  the  civil  magistrate,  and  to  aid  the  officers  of 
justice  in  apprehending  and  securing  him,  in  order  to 
bring  him  to  trial.  If,  upon  such  application,  any  officer 
refuses  or  'willfully  neglects,  except  in  time  of  war,  to 
deliver  over  such  accused  person  to  the  civil  magistrates, 
or  to  aid  the  officers  of  justice  in  apprehending  him,  he 
shall  be  dismissed  from  the  service.  ^ 

1  Municipal  ordinances  and  by-laws  are  part  of  the  "laws  of  the  land" 
within  the  meaning  of  the  phrase  as  used  in  the  59th  A.  W.  (Opin.  of  Atty. 
Gen.;  see  cir.  15,  A.  G.  0.,  1894.) 


ARTICLES    OF   WAR.  105 

Art.  60.  Any  person  in  the  military  service  of  the 
United  States  who  makes  or  causes  to  be  made  any  claim 
against  the  United  States,  or  any  officer  thereof,  know- 
ing such  claim  to  be  false  or  fraudulent ;  or 

[2J  Who  presents  or  causes  to  be  presented  to  any  per- 
son in  the  civil  or  military  service  thereof,  for  approval 
or  payment,  any  claim  against  the  United  States  or  any 
officer  thereof,  knowing  such  claim  to  be  false  or  fraudu- 
lent; or 

[3]  Who  enters  into  any  agreement  or  conspiracy  to 
defraud  the  United  States  by  obtaining,  or  aiding  others 
to  obtain,  the  allowance  or  payment  of  any  false  or 
fraudulent  claim ;  or 

[4]  Who,  for  the  purpose  of  obtaining,  or  aiding  others 
t(^  obtain,  the  approval,  allowance,  or  payment  of  any 
claim  against  the  United  States,  or  against  any  officer 
thereof,  makes  or  uses,  or  procures  or  advises  the  making 
or  use  of,  any  writing  or  other  paper,  knowing  the  same 
to  contain  any  false  or  fraudulent  statement ;  or 

[5]  Who,  for  the  purpose  of  obtaining,  or  aiding  others 
to  obtain,  the  approval,  allowance,  or  payment  of  any 
claim  against  the  United  States  or  any  officer  thereof, 
makes,  or  procures  or  advises  the  making  of,  any  oath 
to  any  fact  or  to  any  wi'iting  or  other  paper,  knowing 
such  oath  to  be  false  ;  or 

[6]  Who,  for  the  purpose  of  obtaining,  or  aiding  others 
to  obtain,  the  approval,  allowance,  or  payment  of  any 
claim  against  the  United  States  or  any  officer  thereof, 
forges  or  counterfeits,  or  procures  or  advises  the  forging 
or  counterfeiting  of,  any  signature  upon  any  writing  or 
other  paper,  or  uses,  or  procures  or  advises  the  use  of, 
any  such  signature,  knowing  the  same  to  be  forged  or 
counterfeited;  or 

[7]  Who,  having  charge,  possession,  custody,  or  control 
of  any  money  or  other  property  of  the  United  States, 
furnished  or  intended  for  the  military  service  thereof, 
knowingly  delivers,  or  causes  to  be  delivered,  to  any  per- 
son having  authority  to  receive  the  same,  any  amount 


106  ARTICLES   OF   WAR. 

thereof  less  than  that  for  which  he  receives  a  certificate 
or  receipt ;  or 

[8]  Who,  being  authorized  to  make  or  deliver  any  paper 
certifying  the  receipt  of  any  property  of  the  United 
States,  furnished  or  intended  for  the  military  service 
thereof,  makes  or  delivers  to  any  x)erson  such  writing, 
without  having  full  knowledge  of  the  truth  of  the  state 
ments  therein  contained,  and  with  intent  to  defraud  the 
United  States ;  or 

[9]  Who,  steals,  embezzles,  knowingly  and  willfully 
misappropriates,  applies  to  his  own  use  or  benefit,  or 
wrongfully  or  knowingly  sells  or  disposes  of  any  ord- 
nance, arms,  equipments,  ammunition,  clothing,  subsist- 
ence stores,  money,  or  other  property  of  the  United 
States,  furnished  or  intended  for  the  military  service 
thereof;  or 

[10]  Who  knowingly  purchases,  or  receives  in  pledge 
for  any  obligation  or  indebtedness,  from  any  soldier, 
officer,  or  other  person  who  is  a  part  of  or  employed  in  said 
forces  or  service,  any  ordnance,  arms,  equipments,  am- 
munition, clothing,  subsistence  stores,  or  other  property 
of  the  United  States,  such  soldier,  officer,  or  other  person 
not  having  lawful  right  to  sell  or  pledge  the  same. 

Shall,  on  conviction  thereof,  be  punished  by  fine  or 
imprisonment,  or  by  such  other  punishment  as  a  court- 
martial  may  adjudge,  or  by  any  or  all  of  said  penalties.  ^ 
And  if  any  person,  being  guilty  of  any  of  the  offenses 
aforesaid,  while  in  the  military  service  of  the  United 
States,  receives  his  discharge,  or  is  dismissed  from  the 
service,  he  shall  continue  to  be  liable  to  be  arrested  and 
held  for  trial  and  sentence  by  a  court-martial,  in  the 
same  manner  and  to  the  same  extent  as  if  he  had  not 
received  such  discharge  nor  been  dismissed. 

Art.  61.  Any  officer  who  is  convicted  of  conduct  un- 
becoming an  officer  and  a  gentleman  shall  be  dismissed 
from  the  service. 

Art.  62.  All  crimes  not  capital,  and  all  disorders  and 

'  The  words  in  italics  were  added  by  act  of  March  2,  1901,  page  124,  i^ust. 


AtlTlCLES   OF   WAR.  107 

neglects,  which  officers  and  soldiers  may  be  guilty  of, 
to  the  prejudice  of  good  order  and  military  discipline, 
though  not  mentioned  in  the  foregoing  Articles  of  War, 
are  to  be  taken  cognizance  of  by  a  general,  or  a  regi- 
mental, garrison,  or  field  officers'  ^  court-martial,  accord- 
ing to  the  nature  and  degree  of  the  offense,  and  punished 
at  the  discretion  of  such  court.  "^ 

Art.  63.  All  retainers  to  the  camp,  and  all  persons 
serving  with  the  armies  of  the  United  States  in  the  field, 
though  not  enlisted  soldiers,  are  to  be  subject  to  orders 
according  to  the  rules  and  discipline  of  war. 

Art.  64.  The  officers  and  soldiers  of  any  troops, 
whether  militia  or  others,  mustered  and  in  pay  of  the 
United  States,  shall,  at  all  times  and  in  all  places,  be 
governed  by  the  Articles  of  War,  and  shall  be  subject 
to  be  tried  by  courts-martial. 

Art.  65.  Officers  charged  with  crime  shall  be  arrested 
and  confined  in  their  barracks,  quarters,  or  tents,  and 
deprived  of  their  swords  by  the  commanding  officer. 
And  any  officer  who  leaves  his  confinement  before  he  is 
set  at  liberty  by  his  commanding  officer  shall  be  dis- 
missed from  the  service. 

Art.  66.  Soldiers  charged  with  crimes  shall  be  con- 
fined until  tried  by  court-martial,  or  released  by  proper 
authority. 

Art.  67.  No  provost  marshal,  or  officer  commanding 
a  guard,  shall  refuse  to  receive  or  keep  any  prisoner 
committed  to  his  charge  by  an  officer  belonging  to  the 
forces  of  the  United  States;  provided  the  officer  com- 
mitting shall,  at  the  same  time,  deliver  an  account  in 
writing,  signed  by  himself,  of  the  crime  charged  against 
the  prisoner. 

1  The  "  field  officer's  "  court  was  abolished  by  sec.  2  of  the  summary  court 
act  of  June  18,  1898,  page  121,  2}<>st. 

"  Sec.  3.  That  fraudulent  enlistment,  and  the  receipt  of  any  pay  or 
allowance  thereunder,  is  hereby  declared  a  military  offense  and  made  pun- 
ishable by  court-martial,  under  the  G2d  Article  of  War."  (Act  of  July  27, 
1892 ;  see  G.  0.  57,  A.  G.  0.,  1892.)  For  definition  of  fraudulent  enlistment, 
see  page  14,  note  4,  ante,  and  for  forms  for  charges  see  pages  129  and  133, 
poet. 


108  ARTICLES   OF   WAR. 

Art.  68.  Every  ofi&cer  to  whose  charge  a  prisoner  is 
committed  shall,  within  twenty-four  hours  after  such 
commitment,  or  as  soon  as  he  is  relieved  from  his  guard, 
report  in  writing,  to  the  commanding  officer,  the  name 
of  such  prisoner,  the  crime  charged  against  him,  and 
the  name  of  the  officer  committing  him ;  and  if  he  fails 
to  make  such  report,  he  shall  be  punished  as  a  court- 
martial  may  direct. 

Art.  69.  Any  officer  who  presumes,  without  proper 
authority,  to  release  any  prisoner  committed  to  his 
charge,  or  suffers  any  prisoner  so  committed  to  escape, 
shall  be  punished  as  a  court-martial  may  direct. 

Art.  70.  No  officer  or  soldier  put  in  arrest  shall  be 
continued  in  confinement  more  than  eight  days,  or  until 
such  time  as  a  court-martial  can  be  assembled. 

Art.  71.  When  an  officer  is  put  in  arrest  for  the  pur- 
pose of  trial,  except  at  remote  military  posts  or  stations, 
the  officer  by  whose  order  he  is  arrested  shall  see  that  a 
copy  of  the  charges  on  which  he  is  to  be  tried  is  served 
upon  him  within  eight  days  after  his  arrest,  and  that  he 
is  brought  to  trial  within  ten  days  thereafter,  unless  the 
necessities  of  the  service  prevent  such  trial ;  and  then 
he  shall  be  brought  to  trial  within  thirty  days  after  the 
expiration  of  said  ten  days.  If  a  copy  of  the  charges  be 
not  served,  or  the  arrested  officer  be  not  brought  to  trial, 
as  herein  required,  the  arrest  shall  cease.  But  officers 
released  from  arrest,  under  the  provisions  of  this  article, 
may  be  tried,  whenever  the  exigencies  of  the  service 
shall  permit,  within  twelve  months  after  such  release 
from  arrest. 

Art.  72.  Any  general  officer  commanding  an  army,  a 
Territorial  division  or  a  department,  or  colonel  com- 
manding a  separate  department,  may  appoint  general 
courts-martial  whenever  necessary.  But  when  any  such 
commander  is  the  accuser  or  prosecutor  of  any  officer 
under  his  command  the  court  shall  be  appointed  by  the 
President;  and  its  proceedings  and  sentence  shall  be 
sent  directly  to  the  Secretary  of  War,  by  whom  they 


ARTICLES   OF   WAR.  109 

shall  be  laid  before  the  President  for  his  approval  or 
orders  in  the  case. ' 

Art.  73.  In  time  of  war  the  commander  of  a  division, 
or  of  a  separate  brigade  of  troops,  shall  be  competent  to 
appoint  a  general  court-martial.  But  when  such  com- 
mander is  the  accuser  or  prosecutor  of  any  person  under 
his  command,  the  court  shall  be  appointed  by  the  next 
higher  commander. 

Art.  74.  Officers  who  may  appoint  a  court-martial 
shall  be  competent  to  appoint  a  judge-advocate  for  the 
same. 

Art,  75.  General  courts-martial  may  consist  of  any 
number  of  officers  from  five  to  thirteen,  inclusive ;  but 
they  shall  not  consist  of  less  than  thirteen,  when  that 
number  can  be  convened  without  manifest  injury  to  the 
service. 

Art.  76.  When  the  requisite  number  of  officers  to 
form  a  general  court-martial  is  not  present  in  any  post 
or  detachment,  the  commanding  officer  shall,  in  cases 
which  require  the  cognizance  of  such  a  court,  report  to 
the  commanding  officer  of  the  department,  who  shall 
thereupon  order  a  court  to  be  assembled  at  the  nearest 
post  or  department  at  which  there  may  be  such  a 
requisite  number  of  officers,  and  shall  order  the  party 
accused,  with  necessary  witnesses  to  be  transported  to 
the  place  where  the  said  court  shall  be  assembled. 

Art.  77.  Officers  of  the  Regular  Army  shall  not  be 
competent  to  sit  on  courts-martial  to  try  the  officers  or 
soldiers  of  other  forces,  except  as  provided  in  Article  78. 

Art.  78.  Officers  of  the  Marine  Corps,  detached  for 
service  with  the  Army  by  order  of  the  President,  may  be 
associated  with  officers  of  the  Regular  Army  on  courts - 
martial  for  the  trial  of  offenders  belonging  to  the  Regu- 
lar Army,  or  to  forces  of  the  Marine  Corps  so  detached ; 
and  in  such  cases  the  orders  of  the  senior  officer  of  either 
corps,  who  may  be  present  and  duly  authorized,  shall 
be  obeyed. 

1  Act  of  July  5,  1884 ;  see  G.  0.  73,  A.  G.  0.,  1884. 


110  ARTICLES   OF   WAR. 

Art.  79.  Officers  shall  be  tried  only  by  general  courts- 
martial  ;  and  no  officer  shall,  when  it  can  be  avoided,  be 
tried  by  officers  inferior  to  him  in  rank.  ^ 

Art.  81.  Every  officer  commanding  a  regiment  or  corps 
shall,  subject  to  the  provisions  of  Article  80,  be  com- 
petent to  appoint,  for  his  own  regiment  or  corps,  courts - 
martial,  consisting  of  three  officers,  to  try  offenses  not 
capital. 

Art.  82.  Every  officer  commanding  a  garrison,  fort,  or 
other  place,  where  the  troops  consist  of  different  corps, 
shall,  subject  to  the  provisions  of  Article  80,  be  compe- 
tent to  appoint,  for  such  garrison  or  other  place,  courts- 
martial,  consisting  of  three  officers,  tO  try  offenses  not 
capital. 

Art.  83.  Regimental  and  garrison  courts-martial  and 
summary  courts,  detailed  under  existing  laws  to  try 
enlisted  men,  shall  not  have  power  to  try  capital  cases 
or  commissioned  officers,  but  shall  have  power  to  award 
punishment  not  to  exceed  confinement  at  hard  labor  for 
three  months  or  forfeiture  of  three  months'  pay,  or  both, 
and  in  addition  thereto,  in  the  case  of  noncommissioned 
officers,  reduction  to  the  ranks,  and  in  the  case  of  first- 
class  privates  reduction  to  second-class  privates:  Pro- 
vided, That  a  summary  court  shall  not  adjudge  confine- 
ment and  forfeiture  in  excess  of  a  period  of  one  month 
unless  the  accused  shall  before  trial  consent  in  writing 
to  trial  by  said  court,  but  in  any  case  of  refusal  to  so 
consent  the  trial  may  be  had  either  by  general,  regi- 
mental, or  garrison  court-martial,  or  by  said  summary 
court,  but  in  case  of  trial  by  said  summary  court  with- 
out consent  as  aforesaid  the  court  shall  not  adjudge 
confinement  or  forfeiture  of  pay  for  more  than  one 
month.  2 

Art.  84.  The  judge-advocate  shall  administer  to  each 
member  of  the  court,  before  they  proceed  upon  any  trial, 
the  following  oath,  which  shall  also  be  taken  by  all  mem- 
bers of  regimental  and  garrison  courts-martial :  '  'You, 

1  Art.  80  repealed  by  act  of  June  18,  1898,  sec.  2,  page  121,  post 

2  83(1  A.  W.,  as  amended  by  act  of  March  2,  1901,  page  Vl^,  post. 


ARTICLES   OF  WAR.  Ill 

A  B,  do  swear  that  you  will  well  and  truly  try  and  deter- 
mine, according  to  evidence,  the  matter  now  before  you, 
between  the  United  States  of  America  and  the  prisoner 
to  be  tried,  and  that  you  will  duly  administer  justice, 
without  partiality,  favor,  or  affection,  according  to  the 
provisions  of  the  rules  and  articles  for  the  government 
of  the  armies  of  the  United  States,  and  if  any  doubt 
should  arise,  not  explained  by  said  articles,  then  accord- 
ing to  your  conscience,  the  best  of  your  understanding, 
and  the  custom  of  war  in  like  cases ;  and  you  do  further 
swear  that  you  will  not  divulge  the  sentence  of  the  court 
until  it  shall  be  published  by  the  proper  authority,  ex- 
cept to  the  judge-advocate ;  neither  will  you  disclose  or 
discover  the  vote  or  opinion  of  any  particular  member 
of  the  court-martial,  unless  required  to  give  evidence 
thereof,  as  a  witness,  by  a  court  of  justice,  in  due  course 
of  law.     So  help  you  God." 

Art,  85.  When  the  oath  has  been  administered  to  the 
members  of  a  court-martial,  the  president  of  the  court 
shall  administer  to  the  judge-advocate,  or  person  officiat- 
ing as  such,  an  oath  in  the  following  form :  "You,  A B, 
do  swear  that  you  will  not  disclose  or  discover  the  vote 
or  opinion  of  any  particular  member  of  the  court-martial, 
unless  required  to  give  evidence  thereof,  as  a  witness,  by 
a  court  of  justice,  in  due  course  of  law ;  nor  divulge  the 
sentence  of  the  court  to  any  but  the  proper  authority, 
until  it  shall  be  duly  disclosed  by  the  same.  .  So  help  you 
God." 

Art.  86.  A  court-martial  may  punish,  at  discretion, 
any  person  who  uses  any  menacing  words,  signs,  or  ges- 
tures, in  its  presence,  or  who  disturbs  its  proceedings  by 
any  riot  or  disorder. 

Art.  87.  All  members  of  a  court-martial  are  to  behave 
with  decency  and  calmness. 

Art.  88.  Members  of  a  court-martial  may  be  chal- 
lenged by  a  prisoner,  but  only  for  cause  stated  to  the 
court.  The  court  shall  determine  the  relevancy  and 
validity  thereof,  and  shall  not  receive  a  challenge  to 
more  than  one  member  at  a  time. 


112  ARTICLES   OF   WAR. 

Art.  89.  When  a  prisoner,  arraigned  before  a  general 
court-martial,  from  obstinacy  and  deliberate  design, 
stands  mute,  or  answers  foreign  to  the  purpose,  the  court 
may  proceed  to  trial  and  judgment  as  if  the  prisoner  had 
pleaded  not  guilty. 

Art.  90.  The  judge-advocate,  or  some  person  deputed 
by  him,  or  by  the  general  or  officer  commanding  the 
Army,  detachment,  or  garrison,  shall  prosecute  in  the 
name  of  the  United  States,  biit  when  the  prisoner  has 
made  his  plea,  he  shall  so  far  consider  himself  counsel 
for  the  prisoner  as  to  object  to  any  leading  question  to 
any  of  the  witnesses,  and  to  any  question  to  the  prisoner 
the  answer  to  which  might  tend  to  criminate  himself. 

Art.  91.  The  depositions  of  witnesses  residing  beyond 
the  limits  of  the  State,  Territory,  or  District  in  which 
any  military  court  may  be  ordered  to  sit,  if  taken  on 
reasonable  notice  to  the  opposite  party  and  duly  au- 
thenticated, may  be  read  in  evidence  before  such  court 
in  cases  not  capital. ' 

Art.  92.  All  persons  who  give  evidence  before  a  court- 
martial  shall  be  examined  on  oath,  or  affirmation,  in  the 
following  form:  "You  swear  (or  affirm)  that  the  evi- 
dence you  shall  give,  in  the  case  now  in  hearing,  shall 
be  the  truth,  the  whole  truth,  and  nothing  but  the  truth. 
So  help  you  God." 

Art.  93.  A  court-martial  shall,  for  reasonable  cause, 
gi'ant  a  continuance  to  either  party,  for  such  time,  and 
as  often,  as  may  appear  to  be  just;  Provided,  That  if 
the  jmsoner  be  in  close  confinement,  the  trial  shall  not 
be  delayed  for  a  period  longer  than  sixty  days.^ 

Art.  95.  Members  of  a  court-martial,  in  giving  their 
votes, 'shall  begin  with  the  youngest  in  commission. 

1"Skc.  4.  That  judge-advocates  of  departments  and  of  courts-martial, 
and  the  trial  officers  of  summary  courts,  are  hereby  authorized  to  admin- 
ister oaths  for  the  purposes  of  the  administration  of  military  justice,  and 
for  other  purposes  of  military  administration."  (Act  of  July  27, 1892;  see 
G.  0.  57,  A.  G.  0.,  1892.) 

2  Art.  94  repealed  by  act  of  March  2,  1901,  sec.  2,  page  123,  poet. 


ARTICLES   OF   WAR.  113 

Art.  96.  No  person  shall  be  sentenced  to  suffer  death, 
except  by  the  concurrence  of  two-thirds  of  the  members 
of  a  general  court-martial,  and  in  the  cases  herein  ex- 
pressly mentioned. 

Art.  97.  No  person  in  the  military  service  shall,  under 
the  sentence  of  a  court-martial,  be  punished  by  confine- 
ment in  a  penitentiary,  unless  the  offense  of  which  he 
may  be  convicted  would,  by  some  statute  of  the  United 
States,  or  by  some  statute  of  the  State,  Territory,  or 
District  in  which  such  offense  may  be  committed,  or  by 
the  common  law,  as  the  same  exists  in  such  State,  Ter- 
ritory, or  District,  subject  such  convict  to  such  punish- 
ment. 

Art.  98.  No  person  in  the  military  service  shall  be 
punished  by  flogging,  or  by  branding,  marking,  or  tat- 
tooing on  the  body. 

Art.  99,  No  officer  shall  be  discharged  or  dismissed 
from  the  service,  except  by  order  of  the  President,  or 
by  sentence  of  a  general  court-martial ;  and  in  time  of 
peace  no  officer  shall  be  dismissed,  except  in  pursuance 
of  the  sentence  of  a  court-martial,  or  in  mitigation 
thereof. 

Art.  100.  When  an  officer  is  dismissed  from  the  serv- 
ice for  cowardice  or  fraud,  the  sentence  shall  further 
direct  that  the  crime,  punishment,  name  and  place  of 
abode  of  the  delinquent  shall  be  published  in  the  news- 
papers in  and  about  the  camp,  and  in  the  State  from 
which  the  offender  came,  or  where  he  usually  resides ; 
and  after  such  publication  it  shall  be  scandalous  for  an 
officer  to  associate  with  him. 

Art.  101.  When  a  court-martial  suspends  an  officer 
from  command  it  may  also  suspend  his  pay  and  emolu- 
ments for  the  same  time,  according  to  the  nature  of  his 
offense. 

Art.  103.  No  person  shall  be  tried  a  second  time  for 
the  sama  offense. 

Art.  103.  No  person  shall  be  liable  to  be  tried  and 
punished  by  a  general   court-martial  for  any  offense 

12915 — 8 


114  ARTICLES   OF  WAR. 

which  appears  to  have  been  committed  more  than  two 
years  before  the  issuing  of  the  order  for  such  trial, 
unless,  by  reason  of  having  absented  himself,  or  of  some 
other  manifest  impediment,  he  shall  not  have  been 
amenable  to  justice  within  that  period. 

No  person  shall  be  tried  or  punished  by  a  court- 
martial  for  desertion  in  time  of  peace  and  not  in  the 
face  of  an  enemy,  committed  more  than  two  years 
before  the  arraignment  of  such  person  for  such  offense, 
unless  he  shall  meanwhile  have  absented  himself  from 
the  United  States,  in  which  case  the  time  of  his  absence 
shall  be  excluded  in  computing  the  period  of  the  limi- 
tation :  Pi^ovided,  That  said  limitation  shall  not  begin 
until  the  end  of  the  term  for  which  said  person  was 
mustered  into  the  service.  ^ 

Art.  104.  No  sentence  of  a  court-martial  shall  be  car- 
ried into  execution  until  the  same  shall  have  been 
approved  by  the  officer  ordering  the  court,  or  by  the 
oflficer  commanding  for  the  time  being.  ^ 

Art.  105.  No  sentence  of  a  court-martial,  inflicting 
the  punishment  of  death,  shall  be  carried  into  execution 
until  it  shall  have  been  confirmed  by  the  President; 
except  in  the  cases  of  persons  convicted  in  time  of  war, 
as  spies,  mutineers,  deserters,  or  murderers,  and  in  the 
cases  of  guerrilla  marauders,  convicted  in  time  of  war, 
of  robbery,  burglary,  arson,  rape,  assault  with  intent 
to  commit  rape,  or  of  violation  of  the  laws  and  customs 
of  war ;  and  in  such  excepted  cases  the  sentence  of  death 
may  be  carried  into  execution  upon  confirmation  by 
the  commanding  general  in  the  field,  or  the  commander 
of  the  department,  as  the  case  may  be. 

Art.  106.  In  time  of  peace  no  sentence  of  a  court- 
martial,  directing  the  dismissal  of  an  officer,  shall  bo 
carried  into  execution,  until  it  shall  have  been  con- 
firmed by  the  President. 

1103d  A.  W.,  as  amended  by  act  of  April  11,  1890;  see  G.  0.  45,  A.  G.  0., 
1890. 

2104th  A.  W.,  as  amended  by  act  of  Jnly  27,  1892;  see  G.  0.  57,  A.  G.  0., 
1892. 


ARTICLES   OF   WAR.  115 

Art,  107.  No  sentence  of  a  court -martial  appointed 
by  the  commander  of  a  division  or  of  a  separate  brigade 
of  troops,  directing  the  dismissal  of  an  officer,  shall  be 
carried  into  execution  until  it  shall  have  been  confirmed 
by  the  general  commanding  the  army  in  the  field  to 
which  the  division  or  brigade  belongs. 

Art.  108.  No  sentence  of  a  court  martial,  either  in 
time  of  peace  or  in  time  of  war,  respecting  a  general 
officer,  shall  be  carried  into  execution  until  it  shall  have 
been  confirmed  by  the  President. 

Art.  109.  All  sentences  of  a  court-martial  may  be 
confirmed  and  carried  into  execution  by  the  officer 
ordering  the  court,  or  by  the  officer  commanding  for 
the  time  being,  where  confirmation  by  the  President  or 
by  the  commanding  general  in  the  field,  or  commander 
of  the  department,  is  not  required  by  these  articles.  ^ 

Art.  111.  Any  officer  who  has  authority  to  carry  into 
execution  the  sentence  of  death,  or  of  dismissal  of  an 
officer,  may  suspend  the  same  until  the  x^leasure  of  the 
President  shall  be  known;  and,  in  such  case,  he  shall 
immediately  transmit  to  the  President  a  copy  of  the 
order  of  suspension,  together  with  a  copy  of  the  pro- 
ceedings of  the  court. 

Art.  112.  Every  officer  who  is  authorized  to  order  a 
general  court-martial  shall  have  power  to  pardon  or 
mitigate  any  i^unishment  adjudged  by  it,  except  the 
punishment  of  death  or  of  dismissal  of  an  officer.  Every 
officer  commanding  a  regiment  or  garrison  in  which  a 
regimental  or  garrison  court-martial  may  be  held  shall 
have  power  to  pardon  or  mitigate  any  punishment 
which  such  court  may  adjudge.'^ 

Art.  113.  Every  judge-advocate,  or  jierson  acting  as 
such,  at  any  general  court-martial,  shall,  with  as  much 
expedition  as  the  opportunity  of  time  and  distance  of 
])lace  may  admit,  forward  the  original  proceedings  and 
■sentence  of  such  court  to  the  Judge -Advocate  General 

'  Article  110  repealed  by  act  of  June  18,  1898,  sec.  2,  page  121,  post. 
"■  See  par.  1017,  A.  R. 


116  ARTICLES   OF  WAR. 

of  the  Army,  in  whose  office  they  shall  be  carefully 
preserved. 

Art.  114.  Every  party  tried  by  a  general  court-martial 
shall,  upon  demand  thereof  made  by  himself  or  by  any 
person  in  his  behalf,  be  entitled  to  a  copy  of  the  proceed- 
ings and  sentence  of  such  court. 

Art.  115.  A  court  of  inquiry  to  examine  into  the 
nature  of  any  transaction  of,  or  accusation  or  imputa- 
tion against,  any  officer  or  soldier,  may  be  ordered  by 
the  President  or  by  any  commanding  officer;  but,  as 
courts  of  inquiry  may  be  perverted  to  dishonorable  pur- 
poses, and  may  be  employed,  in  the  hands  of  w^eak  and 
envious  commandants,  as  engines  for  the  destruction  of 
military  merit,  they  shall  never  be  ordered  by  any  com- 
manding officer  except  upon  a  demand  by  the  officer  or 
soldier  whose  conduct  is  to  be  inquired  of. 

Art.  116.  A  court  of  inquiry  shall  consist  of  one  or 
more  officers,  not  exceeding  three,  and  a  recorder,  to 
reduce  the  proceedings  and  evidence  to  writing. 

Art.  117.  The  recorder  of  a  court  of  inquiry  shall 
administer  to  the  members  the  following  oath:  "You 
shall  well  and  truly  examine  and  inquire,  according  to 
the  evidence,  into  the  matter  now  before  you,  without 
partiality,  favor,  affection,  prejudice,  or  hojie  of  reward. 
So  help  you  God."  After  which  the  president  of  the 
court  shall  administer  to  the  recorder  the  following 
oath:  "You,  A  B,  do  swear  that  you  will,  according  to 
your  best  abilities,  accurately  and  impartially  record 
the  proceedings  of  the  court  and  the  evidence  to  be 
given  in  the  case  in  hearing.     So  help  you  God. " 

Art.  118.  A  court  of  inquiry,  and  the  recorder  thereof, 
shall  have  the  same  power  to  summon  and  examine  wit- 
nesses as  is  given  to  courts-martial  and  the  judge -advo- 
cates thereof.  Such  witnesses  shall  take  the  same  oath 
which  is  taken  by  witnesses  before  courts-martial,  and 
the  party  accused  shall  be  permitted  to  examine  and 
cross-examine  them,  so  as  fully  to  investigate  the  cir- 
cumstances in  question. 


AltTICLEJS  OF  WAR.  117 

Art.  119.  A  court  of  inquiry  shall  not  give  an  opinion 
on  the  merits  of  the  case  inquired  of  unless  specially 
ordered  to  do  so. 

Art.  120.  The  proceedings  of  a  court  of  inquiry  must 
be  authenticated  by  the  signatures  of  the  recorder  and 
the  president  thereof,  and  delivered  to  the  commanding 
officer. 

Art.  121.  The  proceedings  of  a  court  of  inquiry  may 
be  admitted  as  evidence  by  a  court-martial,  in  cases  not 
capital  nor  extending  to  the  dismisal  of  an  officer :  Pro- 
vided, That  the  circumstances  are  such  that  oral  testi- 
mony can  not  be  obtained. 

Art.  122.  If,  upon  marches,  guards,  or  in  quarters, 
different  corps  of  the  Army  happen  to  join  or  do  duty 
together,  the  officer  highest  in  rank  of  the  line  of  the 
Army,  Marine  Corps,  or  militia,  by  commission,  there 
on  duty  or  in  quarters,  shall  command  the  whole,  and 
give  orders  for  what  is  needful  in  the  service,  unless 
otherwise  specially  directed  by  the  President,  according 
to  the  nature  of  the  case. 

Art.  123.  In  all  matters  pertaining  to  the  rank,  duties, 
and  rights  of  officers,  the  same  rules  and  regulations  shall 
apply  to  officers  of  the  Regular  Army  and  to  volunteers 
commissioned  in,  or  mustered  into  said  service,  under 
the  laws  of  the  United  States,  for  a  limited  period. 

Art.  124.  Officers  of  the  militia  of  the  several  States, 
when  called  into  the  service  of  the  United  States,  shall  on 
all  detachments,  courts-martial,  and  other  duty,  wherein 
they  may  be  employed  in  conjunction  with  the  regular 
or  volunteer  forces  of  the  United  States,  take  rank  next 
after  all  officers  of  the  like  grade  in  said  regular  or 
volunteer  forces,  notwithstanding  the  commissions  of 
such  militia  officers  may  be  older  than  the  commissions 
of  the  said  officers  of  the  regular  or  volunteer  forces  of 
the  United  States. 

Art.  125.  In  case  of  the  death  of  any  officer,  the  major 
of  his  regiment,  or  the  officer  doing  the  major's  duty,  or 
the  second  officer  in  command  at  any  post  or  garrison, 


lis  OTHER   STATUTORY   PROVISIONS. 

as  the  case  may  be,  shall  immediately  secure  all  his 
effects  then  in  camp  or  quarters,  and  shall  make,  and 
transmit  to  the  office  of  the  Department  of  War,  an 
inventory  thereof. 

Art.  126.  In  case  of  the  death  of  any  soldier,  the  com- 
manding officer  of  his  troop,  battery,  or  company  shall 
immediately  secure  all  his  effects  then  in  camp  or  quar- 
ters, and  shall,  in  the  presence  of  two  other  officers, 
make  an  inventory  thereof,  which  he  shall  transmit  to 
the  office  of  the  Department  of  War. 

Art.  127.  Officers  charged  with  the  care  of  the  effects 
of  deceased  officers  or  soldiers  shall  account  for  and  de- 
liver the  same,  or  the  proceeds  thereof,  to  the  legal  rep- 
resentatives of  such  deceased  officers  or  soldiers.  And 
no  officer  so  charged  shall  be  permitted  to  quit  the  regi- 
ment or  post  until  he  has  deposited  in  the  hands  of  the 
commanding  officer  all  the  effects  of  such  deceased 
officers  or  soldiers  not  so  accounted  for  and  delivered. 

Art.  128.  The  foregoing  articles  shall  be  read  and 
published,  once  in  every  six  months,  to  every  garrison, 
regiment,  troop,  or  company  in  the  service  of  the  United 
States,  and  shall  be  duly  observed  and  obeyed  by  all 
officers  and  soldiers  in  said  service. 

OTHER     STATUTORY    PROVISIONS    DEFrPflNG 
COURT-MARTIAT^  OFFEI^SES. 

Sec.  1343.  R.  S.  "All  persons  who,  in  time  of  war,  or 
of  rebellion  against  the  supreme  authority  of  the  United 
States,  shall  be  found  lurking  or  acting  as  spies,  in  or 
about  any  of  the  fortifications,  posts,  quarters,  or  en- 
campments of  any  of  the  armies  of  the  United  States,  or 
elsewhere,  shall  be  triable  by  a  general  court-martial, 
or  by  a  military  commission,  and  shall,  on  conviction 
thereof,  suffer  death." 

Sec.  5306,  R.  S.  "Every  officer  of  the  United  States, 
civil,  military,  or  naval,  and  every  sutler,  soldier,  marine, 
or  other  person,  who  takes,  or  causes  to  be  taken  into 
a  State  declared  to  be  in  insurrection,  or  to  any  other 


OTHER   STATUTORY    PROVISIONS.  119 

point  to  be  thence  taken  into  such  State,  or  who  trans- 
ports or  sells,  or  otherwise  disposes  of  therein,  any  goods, 
wares,  or  merchandise  whatsoever,  except  in  pursuance 
of  license  and  authority  of  the  President,  as  i3rovided  in 
this  title  [see  sec.  5304] ,  or  who  makes  any  false  state- 
ment or  representation  upon  which  license  and  authority 
is  granted  for  such  transportation,  sale,  or  other  disposi- 
tion, or  who,  under  any  license  or  authority  obtained, 
willfully  and  knowingly  transports,  sells,  or  otherwise 
disposes  of  any  other  goods,  wares,  or  merchandise  than 
such  as  are  in  good  faith  so  licensed  and  authorized,  or 
who  willfully  and  knowingly  transports,  sells,  or  dis- 
poses of  the  same,  or  any  portion  thereof,  in  violation  of 
the  terms  of  such  license  or  authority,  or  of  any  rule  or 
regulation  prescribed  by  the  Secretary  of  the  Treasury 
concerning  the  same,  or  who  is  guilty  of  any  act  of  em- 
bezzlement, of  willful  misappropriation  of  public  or  pri- 
vate money  oi:  property,  of  keeping  false  accounts,  or  of 
willfully  making  any  false  returns,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  shall  be  fined  not  more 
than  five  thousand  dollars,  and  imprisoned  in  the  pen- 
itentiary not  more  than  three  years.  Violations  of  this 
section  shall  be  cognizable  before  any  court,  civil  or 
military,  competent  to  try  the  same. " 

Sec.  5313,  R.  S.  "All  persons  in  the  military  or  naval 
service  of  the  United  States  are  prohibited  from  buying 
or  selling,  trading,  or  in  any  way  dealing  in  captured  or 
abandoned  property,  whereby  they  shall  receive  or  ex- 
pect any  profit,  benefit,  or  advantage  to  themselves,  or 
any  other  person,  directly  or  indirectly  connected  with 
them,  and  it  shall  be  the  duty  of  such  person  whenever 
such  property  comes  into  his  possession  or  custody,  or 
within  his  control,  to  give  notice  thereof  to  some  agent, 
appointed  by  virtue  of  this  title  [see  sec.  5305] ,  and  to 
turn  the  same  over  to  such  agent  without  delay.  Any 
officer  of  the  United  States,  civil,  military,  or  naval,  or 
any  sutler,  soldier,  or  marine,  or  other  person  who  shall 
violate  any  provision  of  this  section  shall  be  deemed 
guilty  of  a  misdemeanor,  and  shall  be  fined  not  more 


120  SUMMARY    COURT   ACT. 

than  five  thousand  dollars,  and  imprisoned  in  the  pen- 
itentiary not  more  than  three  years.  Violations  of  this 
section  shall  be  cognizable  before  any  court,  civil  or 
military,  competent  to  try  the  same." 

ACT  ESTABLISHING  THE  SUMMARY  COURT. 

Be  it  enacted,  etc.,  That  the  Act  entitled  "An  act  to 
promote  the  administration  of  justice  in  the  Army," 
approved  October  first,  eighteen  hundred  and  ninety,  as 
supplemented  and  amended  by  subsequent  legislation, 
be,  and  the  same  is  hereby,  amended  so  as  to  read  as 
follows : 

"That  the  commanding  officer  of  each  garrison,  fort, 
or  other  place,  regiment  or  corps,  detached  battalion,  or 
company,  or  other  detachment  in  the  Army,  shall  have 
power  to  appoint  for  such  place  or  command,  or  in  his 
discretion  for  each  battalion  thereof,  a  summary  court 
to  consist  of  one  officer  to  be  designated  by  him,  before 
whom  enlisted  men  who  are  to  be  tried  for  offenses, 
such  as  were  prior  to  the  passage  of  the  Act  '  to  promote 
the  administration  of  justice  in  the  Army,'  approved 
October  first,  eighteen  hundred  and  ninety,  cognizable 
by  gaiTison  or  regimental  courts-martial,  and  offenses 
cognizable  by  field  officers  detailed  to  try  offenders  under 
the  provisions  of  the  eightieth  and  one  hundred  and 
tenth  articles  of  war,  shall  be  brought  to  trial  within 
twenty -four  hours  of  the  time  of  the  arrest,  or  as  soon 
thereafter  as  practicable,  except  when  the  accused  is  to 
be  tried  by  general  court-martial;  but  such  summary 
court  may  be  appointed  and  the  officer  designated  by 
superior  authority  when  by  him  deemed  desirable ;  and 
the  officer  holding  the  summary  court  shall  have  power 
to  administer  oaths  and  to  hear  and  determine  such 
cases,  and  when  satisfied  of  the  guilt  of  the  accused  ad- 
jiidge  the  punishment  to  be  inflicted,  which  said  pun- 
ishment shall  not  exceed  confinement  at  hard  labor  for 
one  month  and  forfeiture  of  one  month's  pay,  and,  in 
the  case  of  a  noncommissioned  officer,  reduction  to  the 


SUMMARY   COURT  ACT.  121 

ranks  in  addition  thereto ;  that  there  shall  be  a  summary 
court  record  kept  at  each  military  post  and  in  the  field 
at  the  headquarters  of  the  proper  command,  in  which 
shall  be  entered  a  record  of  all  cases  heard  and  deter- 
mined and  the  action  had  thereon ;  and  no  sentence  ad- 
judged by  said  summary  court  shall  be  executed  until 
it  shall  Imve  been  approved  by  the  officer  appointing  the 
court,  or  by  the  officer  commanding  for  the  time  being : 
Provided,  That  when  but  one  commissioned  officer  is 
present  with  a  command  he  shall  hear  and  finally  deter- 
mine such  cases :  And  provided  further,  That  no  one 
while  holding  the  privileges  of  a  certificate  of  eligibility 
to  promotion  shall  be  brought  before  a  summary  court, 
and  that  noncommissioned  officers  shall  not,  if  they  ob- 
ject thereto,  be  brought  to  trial  before  summary  courts 
without  the  authority  of  the  officer  competent  to  order 
their  trial  by  general  court-martial,  but  shall  in  such 
cases  be  brought  to  trial  before  garrison,  regimental,  or 
general  courts-martial,  as  the  case  may  be." 

Sec.  2.  That  articles  eighty  and  one  hundred  and  ten 
of  the  Rules  and  Articles  for  the  Government  of  the 
Armies  of  the  United  States  be,  and  the  same  are  hereby, 
repealed. 

Sec.  3.  That  the  commanding  officers  authorized  to 
approve  the  sentences  of  summary  courts  and  superior 
authority  shall  have  power  to  remit  or  mitigate  the  same. 

Sec.  4.  That  post  and  other  commanders  shall,  in  time 
of  peace,  on  the  last  day  of  each  month,  make  a  report 
to  the  department  headquarters  of  the  number  of  cases 
determined  by  summary  court  during  the  month,  setting 
forth  the  offenses  committed  and  the  penalties  awarded, 
which  report  shall  be  filed  in  the  office  of  the  judge-advo- 
cate of  the  department,  and  may  be  destroyed  when  no 
longer  of  use. 

Sec.  5.  That  soldiers  sentenced  by  court-martial  to 
dishonorable  discharge  and  confinement  shall,  until  dis- 
charged from  such  confinement,  remain  subject  to  the 
Articles  of  War  and  other  laws  relating  to  the  adminis- 
tration of  military  justica 


122  ACT   OF   MARCH   2,  1901. 

Sec.  6.  That  it  shall  be  lawful  for  any  civil  officer  hav- 
ing authority  under  the  laws  of  the  United  States,  or  of 
any  State,  Territory,  or  District,  to  arrest  offenders,  to 
summarily  arrest  a  deserter  from  the  military  service  of 
the  United  States  and  deliver  him  into  the  custody  of 
the  military  authority  of  the  General  Government. 

Sec.  7.  That  this  Act  shall  take  effect  sixty  days  after 
its  passage. 

Approved  June  18,  1898. 


ACT  TO  PREVENT  THE  FAILURE  OF  MILITARY 
JUSTICE. 

Be  it  enacted,  etc. ,  That  every  person  not  belonging 
to  the  Army  of  the  United  States  who,  being  duly  sub- 
poenaed to  appear  as  a  witness  before  a  general  court- 
martial  of  the  Army,  willfully  neglects  or  refuses  to 
appear,  or  refuses  to  qualify  as  a  witness  or  to  testify  or 
produce  documentary  evidence  which  such  person  may 
have  been  legally  subpoenaed  to  produce,  shall  be  deemed 
guilty  of  a  misdemeanor,  for  which  such  person  shall  be 
punished  on  information  in  the  district  court  of  the 
United  States ;  and  it  shall  be  the  duty  of  the  United 
States  district  attorney,  on  the  certification  of  the  facts 
to  him  by  the  general  court-marti  al,  to  file  an  information 
against  and  prosecute  the  person  so  offending,  and  the 
punishment  of  such  person,  on  conviction,  shall  be  a  fine 
of  not  more  than  five  hundred  dollars  or  imprisonment 
not  to  exceed  six  months,  or  both,  at  the  discretion  of  the 
court;  Provided,  That  this  shall  neb  apply  to  persons 
residing  beyond  the  State,  Territory,  or  District  in  which 
such  general  court-martial  is  held,  and  that  the  fees  of 
such  witness,  and  his  mileage  at  the  rates  provided  for 
witnesses  in  the  United  States  district  court  for  said 
State,  Territory,  or  District  shall  be  duly  paid  or  tendered 
said  witness,  such  amounts  to  be  paid  by  the  Pay  Depart- 
ment of  the  Army  out  of  the  appropriation  for  compen- 
sation of  witnesses :  Provided,  That  no  witness  shall  be 


ACT   OF   MARCH   2,   1901.  123 

compelled  to  incriminate  himself  or  to  answer  any  ques- 
tions which  may  tend  to  incriminate  or  degrade  him. 

Sec.  2.  That  article  ninety -four,  section  thirteen  hun- 
dred and  forty-two,  of  the  Revised  Statutes  of  the  United 
States  be,  and  the  same  is  hereby,  repealed. 

Sec.  3.  That  section  one  hundred  and  eighty-three  of 
the  Revised  Statutes  of  the  United  States  be,  and  the 
same  is  hereby,  amended  so  as  to  read  as  follows: 

"Sec.  183,  Any  officer  or  clerk  of  any  of  the  depart- 
ments lawfully  detailed  to  investigate  frauds  on,  or  at- 
tempts to  defraud,  the  Government,  or  any  irregularity 
or  misconduct  of  any  officer  or  agent  of  the  United  States, 
and  any  officer  of  the  Army  detailed  to  conduct  an  in- 
vestigation, and  the  recorder,  and,  if  there  be  none,  the 
presiding  officer  of  any  military  board  appointed  for 
such  purpose,  shall  have  authority  to  administer  an  oath 
to  any  witness  attending  to  testify  or  depose  in  the  course 
of  such  investigation." 

Sec.  4.  That  article  eighty-three,  section  thirteen 
hundred  and  forty-two,  of  the  Revised  Statutes  of  the 
United  States  be,  and  the  same  is  hereby,  amended  to 
read  as  follows : 

'  'Article  83.  Regimental  and  garrison  courts-martial 
and  summary  courts  detailed  under  existing  laws  to  try 
enlisted  men  shall  not  have  power  to  try  capital  cases 
or  commissioned  officers,  but  shall  have  power  to  award 
punishment  not  to  exceed  confinement  at  hard  labor  for 
three  months  or  forfeiture  of  three  months'  pay,  or  both, 
and  in  addition  thereto,  in  the  case  of  noncommissioned 
officers  reduction  to  the  ranks  and  in  the  case  of  first- 
class  privates  reduction  to  second-class  x^rivates:  Pro- 
vided, That  a  summary  court  shall  not  adjudge  confine- 
ment and  forfeiture  in  excess  of  a  period  of  one  month, 
unless  the  accused  shall  before  trial  consent  in  writing 
to  trial  by  said  court,  but  in  any  case  of  refusal  to  so 
consent,  the  trial  may  be  had  either  by  general,  regi- 
mental, or  garrison  court-martial,  or  by  said  summary 


124  ACT   OF  MARCH   2,   1901. 

court,  but  in  case  of  trial  by  said  summary  court  with- 
out consent  as  aforesaid,  the  court  shall  not  adjudge  con- 
finement or  forfeiture  of  pay  for  more  than  one  month. " 

Sec.  5.  That  article  sixty,  section  thirteen  hundred 
and  forty-two,  of  the  Revised  Statutes  of  the  United 
States  be,  and  the  same  is  hereby,  amended  by  inserting 
after  the  words  ' '  shall,  on  conviction  thereof,  be  pun- 
ished by  fine  or  imprisonment,  or  by  such  other  punish- 
ment as  a  court-martial  may  adjudge,"  the  words  "or 
by  any  or  all  of  said  penalties." 

Approved,  March  2,  1901. 


aENBRAL  FORMS. 


FORMS  FOR  CHARGES. 

Charge  and  specification  preferred  against  Private 
A B ,  Co.  , U.  S.  Infantry. 

Article  17. 

(a)  Charge:  "Selling  clothing/  in  violation  of  the 
17th  Article  of  War." 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did  sell  the  following  articles  of  his 

uniform  clothing,  issued  to  him,  viz :  One  (1)  forage  cap, 

value  $ ;  one  (1)  overcoat,  made,  value  $ ;  and 

one  (1)  blanket,  woolen,  value  $ ;  total  value  of  ar- 
ticles sold  $ . 

' '  This  at ,  on  the of ,  19—. " 

C D , 

Captain,  ■  Infantry, 

Officer  Preferring  Charge. 

Witnesses : 

1st  Sergeant  E F ,  Co. , Infantry. 

Private  G H ,  Troop , Cavalry. 

Mr.  I K .  citizen. 


(b)  "Losing  accouterments,  in  violation  of  the  17th 
Article  of  War.'"^ 

^Seepage  18,  Sec.  Ill,  ante. 

2  If  a  soldier  is  known  to  have  unlawfully  disposed  of  his  clothing  or  ac- 
couterments in  a  way  not  mentioned  in  the  17th  Article,  the  charge  should 
be  laid  under  the  C2d  Article. 

(125; 


126  FORMS   FOR    CHARGES. 

Specification :  "In  that  Private  A B ,  Co. , 

•  U.  S.  Infantry,  did,  through  neglect,  lose  the  fol- 
lowing articles  of  his  accouterments,  issued  to  him,  viz : 

One  (1) ,  value  .$ ;  and  one  (1) ,  value  § ; 

total  value  of  articles  lost,  $ . 

"This  at,"  etc. 

Article  20. 

Charge:  "Behaving  with  disrespect  toward  his  com- 
manding officer,  in  violation  of  the  20th  Article  of  War. " 

Specification:  "In  that  Private  A — -B ,  Co. , 

U.  S.  Infantry,  did  behave  himself  with  disrespect 

toward  his  commanding  officer.  Captain  C D , 

U.  S.  Infantry,  by  (here  insert  language  or  describe 

the  conduct). 

"This  at on  the of  ,  19—." 

ARTICIiE  21. 

(a)  Charge:  "Disobedience  of  orders,'  in  violation  of 
the  21st  Article  of  War." 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  having  received  a  lawful  command 

from  his  superior  officer,  2d  Lieut.  C D , 

U.  S.  Infantry,  to  (insert  order),  did  willfully  disobey 
the  same. 

"This  at ,  on  the of ,  19—." 

or, 

(b)  '  *  Striking  his  superior  officer,  in  violation  of  the 
21st  Article  of  War." 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did  strike  his  superior  officer,  2d 

Lieut.    C D ,  U.    S.   Infantry,  with  (here 

^  A  uoncompllance  by  a  soldier  with  an  order  emanating  from  a  noncom- 
missioned officer  is  not  an  offenso  under  this  article,  but  one  to  be  cliargeU, 
in  general,  under  the  62d.  A  simple  neglect  to  comply  with  a  standing 
order  is  an  offense  under  the  62d  Article,  and  not  under  the  2l8t,  which 
implies  a  willful  defiance  of  authority. 


FORMS   FOR   CHARGES.  127 

describe  the  assault)  the  said  lieutenant  being  in  the 
execution  of  his  office. 

"This  at ,  on  the of ,  19—." 

Article  24. 

Charge:  "Disobedience  of  orders, in  violation  of  the 
24th  Article  of  War." 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  being  present  and  taking  part  in  a 

(quarrel,  fray  or  disorder)  among  enlisted  men  of , 

and  having  been  duly  ordered  by  {insert  name  and  rank 
of  officer  or  noncoyiimissioned  officer)  into  confinement 
{or  arrest)  did  refuse  to  obey  and  did  disobey  said  order. 

"  This  at ,  on  the of ,  19—." 

Article  32. 

Charge :  ' '  Absence  without  leave,  in  violation  of  the 
32d  Article  of  War." 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did  absent  himself  from  his  com- 
pany, without  leave  from  his  commanding  officer,  from 

,  on  the  of  ,  19 — ,  until  ,  on  the  

of ,  19—. 

"This  at ,  on  the of ,  19—." 

Article  33. 

(a)  Charge:  "Absence  from  parade,  in  violation  of 
the  33d  Article  of  War.  " 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  not  being  prevented  by  sickness  or 

other  necessity,  did  fail  to  repair,  at  the  fixed  time,  to 
the  place  of  parade  appointed  by  his  commanding  officer. 

"  This  at ,  on  the of ,  19—." 

or, 

(5)  "Absence  from  11  p.  m.  inspection,  in  violation  of 
the  33d  Article  of  War." 

Specification  :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry  not  being  prevented  by  sickness  or 


128  FORMS   FOR   CHARGES. 

other  necessity,  did  fail  to  repair,  at  the  fixed  time,  to 
the  place  appointed  by  his  commanding  officer  for  11 
o'clock  p.  m.  inspection  of  his  company. 
"This  at ,  on  the of ,  19—." 

Article  38. 

(a)  Charge:  "Drunkenness  on  duty,  in  violation  of 
the  38th  Article  of  War." 

Specification:  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  while  on  duty  on  stable  guard,  was 

found  drunk. 

"This  at ,  on  the of ,  19—." 

or, 

(b)  ' '  In  that  Private  A B ,  Co. , U.  S. 

Infantry,  while  on  duty  at  drill,  was  found  drunk. 

"This  at," etc. 

Article  39. 

(a)  Charge:  "Sleeping  on  post,  in  violation  of  the 
39th  Article  of  War." 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  being  on  guard  and  posted  as  a  sen- 
tinel, was  found  sleeping  on  his  post. 

"  This  at ,  on  the of ,  19—." 

or, 

(b)  "Leaving  post,  in  violation  of  the  39th  Article  of 
War." 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  being  on  guard  and  posted  as  a  sen- 
tinel, did  leave  his  post  before  he  was  regularly  relieved. 

"This  at,  "etc. 

Article  40. 

Charge:  "Quitting  guard,  in  violation  of  the  40th 
Article  of  War, " 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  being  on  guard,  did,  without  urgent 

necessity,  quit  his  guard  without  leave  from  his  superior 
officer. 

"This  at ,  on  the of ,  19—." 


FORMS  FOR  CHARGES.  129 


Article  47. 


(a)  Charge :  ' '  Desertion,  in  violation  of  the  47th  Arti- 
cle of  War." 

Specification:  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  a  soldier  in  the  service  of  the  United 

States,  ^  did  desert  the  same  at ,  on  or  about  the 

of ,  19 — ,  and  did  remain  absent  in  desertion  until 

he  was  apprehended  {or  until  he  surrendered  himself), 
at ,  on  or  about  the of ,  19 — ." 

{If  a  soldier  deserts  and  enlists  in  another  troop,  he 
should  be  charged  with  desertion  under  the  47th  Article, 
and  also  with  "fraudulent  enlistment,  to  the  prejudice 
of  good  order  and  military  discipline,"  under  the  6Sd.^ 
The  specification  to  the  latter  charge  should  read  as 
follows:) 

(6)  "In  that  Private  A B ,  Co , U.  S. 

Infantry,  a  soldier  in  the  service  of  the  United  States, 
did,  without  a  discharge  from  said  regiment  of  infantry, 

fraudulently  enlist  in  Troop , U.  S.  Cavalry,  at 

.  on  the of ,  19 — ,  under  the  name  of ." 

Article  51, 

Charge :  '  'Advising  {or  persuading)  a  soldier  to  desert, 
in  violation  of  the  51st  Article  of  War." 

Specification :  "In  that  Private  A B ,  U. 

S.   Infantry,   did  advise  {or  persuade)  Private  A 

B  ,  U.  S.  Infantry,  to  desert  the  service  of 

the  United  States  {if  desertion  occurred,  state  the  fact). 

"  This  at ,  on  the  — -  of ,  19—." 

1  This  form  is  applicable  either  in  case  a  soldier  has  "received  pay"  or 
has  been  "duly  enlisted."  In  either  case  the  "statement  of  service"  will 
enable  the  court  to  determine  as  to  the  statute  of  limitation  and  proper  pun- 
ishment.    (See  page  33,  par.  9,  and  page  48,  ante. 

-  See  50th  A.  W.  In  such  cases  it  is  not  necessary  to  allege  receipt  of  pay 
or  allowance,  as  the  soldier  being  already  in  the  service,  his  enlisting  again 
without  a  discharge  is  punishable  as  fraudulent  enlistment  without  regard 
to  the  act  of  July  27, 1892.     See  Dig.  Op.  J.  A.  G.,  §  1418. 

12916 9 


130  FORMS  FOR   CHARGES. 

Article  58. 

Charge:  "  Murder,  in  violation  of  the  58th  Article  of 
War." 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did  in  time  of  (war,  insurrection,  or 

rebellion)  willfully,  unlawfully,  feloniously  and  with 

malice  aforethought  murder  and  kill by  {here 

set  forth  the  mariner  of  killing). 

"This  at ,  on  or  about  the of ,  19 — ." 

Article  60. 

(a)  Charge:  "Causing  to  be  presented  to  the  United 
States  authorities  for  payment  a  false  and  fraudulent 
claim  against  the  United  States,  knowing  such  claim  to 
be  false  and  fraudulent,  in  violation  of  the  60th  Article 
of  War." 

Specification:  "In  that  1st  Lieut.  A B , • 

U.  S.  Infantry,  having  duly  assigned  to and 

caused  to  be  presented  for  payment  to ,  Deputy 

Paymaster  General,  U.  S.  Army,  by ,  his  official 

pay  account  and  claim  against  the  United  States  for  pay 

in  full  for  the  month  of ,  19—,  amounting  to  the  sum 

of (S ),  and  the  same  having  been  duly  satisfied 

and  paid  on  such  presentation,  on  or  about ,  19 — , 

did  subsequently  cause  to  be  presented  for  payment  by 
his  assignee, ,  to  the  said ,  Deputy  Pay- 
master General,  another,  and  a  false  and  fraudulent, 
official  pay  account  and  claim  against  the  United  States 
for  pay  for  the  same  month  and  in  the  same  amount,  he, 
the  said  Lieut.  A B ,  well  knowing  that  this  sub- 
sequent account  and  claim  was  false  and  fraudulent. 

"This  at ,  on  or  about  the of ,  19 — /' 

(b)  Charge :  ' '  Larceny,  in  violation  of  the  60th  Article 
of  War." 

Specification :  "In  that  Private  A B — — ,  Co. , 

■ U.  S.  Infantry,  did  feloniously  take,  steal,  and  carry 

away ,  of  the  value  of  $ ,  the  property  of  the 


FORMS   FOR  CHARGES.  131 

United  States,  furnished  and  intended  for  the  military 
service  thereof. 

"  This  at ,  on  the of ,  19—." 

Article  61. 

Charge :  ' '  Conduct  unbecoming  an  officer  and  a  gen- 
tleman, in  violation  of  the  61st  Article  of  War." 

Specification  1:  "In  that  1st  Lieut.  A B , 

U.  S.  Infantry,  having,  for  value  received,  assigned  to 

,  his  official  pay  account  and  claim  for  pay  in 

full  against  the  United  States  for  the  month  of , 

19 — ^  which  said  account  v^as  made  and  executed  by 
him  in  due  manner  and  form,  did,  nevertheless,  for  a 

valuable  consideration,  assign  to ,  another  and 

a  second  pay  account  and  claim  of  the  same  nature 
and  form,  and  for  the  same  amount  and  period,  he,  the 

said  Lieut.  A B ,  well  knowing  at  the  time  he 

made  such  assignment  that  the  second  account  and  claim 
was  false  and  fraudulent. 

"  This  at  — -,  on  or  about  the of ,  19 — ." 

Specification  2:  "  In  that  1st  Lieut.  A B , 

U.  S.  Infantry,  having  made  and  executed  in  due  form 
his  certain  pay  account  as  an  officer  in  the  army  for  the 

month  of  ,  19 — ,  and  having  duly  assigned  the  said 

account  to ,  thereby  parting  with  all  individual 

title  and  interest  therein,  and  without  having  redeemed 
the  same,  and  while  it  remained  in  full  force  and  effect, 
did  falsely  certify  with  his  official  signature  to  the  cor- 
rectness of  another  official  pay  account  for  pay  for  the 
said  month  of  ,  19 — ,  duly  made,  executed,  and  as- 
signed to ,  which  said  certificate  was  in  words 

as  follows :  '  I  certify  that  the  amount  charged  in  the 
foregoing  account  is  correct  and  just.' 

"This  at ,  on  or  about  the of ,  19 — ." 

Article  62. 

(a)  Charge:  "Neglect  of  duty,  to  the  prejudice  of 
good  order  and  military  discipline. " 


132  FORMS   FOR  CHARGES. 

Specification :  "In  that  Private  A B ,  Co.  — ^  -, 

U.  S.  Infantry,  being  on  duty  as ,  and  it  beiiig 

his  duly  as  such  to ,  did  fail  and  neglect  to  perform 

said  duty. 

"This  at ,  on  the of ,  19—." 

(6)  Charge:  "Drunkenness  and  disorderly  condtict, 
to  the  prejudice  of  good  order  and  military  discipliiie. " 

Specification :  "In  that  Private  A—  B ,  Co. , 

U.  S.  Infantry,  was  drunk  and  disorderly  in  — — . 

"This  at ,  on  the of ,  19—." 

(c)  Charge:  "Suffering  a  prisoner  to  escape,  to  the 
prejudice  of  good  order  and  military  discipline." 

Specification :  ' '  In  that  Private  A- — -  B ,  Co.-  — , 

U.  S.  Infantry,  while  on  duty  as  a  sentinel,  did, 

through  neglect,  suffer  Private  C D ,  Co. , 

U.  S.  Infantry,  a  prisoner  under  his  charge,  to  escape. 

"This  at ,  on  the of ,  19—." 

or, 

Specification :  "In  that  Private  A B ,  Co. -, 

U.  S.  Infantry,  while  on  duty  as  a  sentinel,  did  will 

fully  suffer  Private  C D -,  Co. , U.  S. 

Infantry,  a  prisoner  under  his  charge,  to  escape. 
"This  at ,  on  the of ,  19—." 

(d)  Charge:  "Conduct  to  the  prejudice  of  good  order 
and  military  discipline.'' 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  having   received  a  lawful  order 

from  1st  Sergt.  C D ,  Co. , U.  S.  Infan- 
try, the  said  sergeant  being  in  the  execution  of  his  office, 
to  {insert  order),  did  willfully  disobey  the  same. 

"This  at ,  on  the of ,  19—." 

{If  any  person  not  a  soldier  ^  fraudulently  enlist  in  the 

1  For  case  of  fraudulent  enlistment  by  a  soldier,  see  page  129,  form  (fc), 
ante;  and  for  definition  ot  "fraudulent  enlistmeut,"  see  page  14,  note  4, 
ante. 


FORMS   FOR   CHARGES.  133 

United  States  service,  the  charge  and  specification  should 
read :  '■ ) 

(e)  Charge:  "Fraudulent  enlistment,  in  violation  of 
the  62d  Article  of  War." 

Specification :  "In  that  Private  A B ,  Co, , 

U.  S.  Infantry,  did,  at ,  on  the of ,  19—, 

fraudulently  enlist  as  a  soldier  in  the  service  of  the  United 
States,  by  falsely  representing  that  he  had  never  been  dis- 
charged from  the  United  States  service  by  sentence  of 
a  military  court  and  by  deliberately  and  willfully  con- 
cealing from  the  recruiting  officer,  ,  the  fact  of  his 

dishonorable  discharge  from ,  on ,  pursuant  to 

sentence  of  court-martial ;  and  that  he  has  at ,  since 

said  enlistment,  received  pay  and  allowances  there- 
under. " 

or, 

if)  Specification :  "In  that  Private  A B ,  Co.  — , 

U.  S.  Infantry,  did,  at ,  on  the of ,  19—, 

he  being  a  minor,  fraudulently  enlist  as  a  soldier  in  the 
service  of  the  United  States  by  falsely  representing  him- 
self to  be  over  21  years,  to  wit,  years  and  

months  of  age ;  and  that  he  has  at ,  since  said  enlist- 
ment, received  pay  and  allowances  thereunder. " 

(g)  Charge:  "Manslaughter,  to  the  prejudice  of  good 
order  and  military  discipline,  in  violation  of  the  62d 
Article  of  War." 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did  unlawfully,  willfully  and  feloni- 
ously kill-  Private  C D ,  Co. ,  —  U.  S.  In- 
fantry, by  {here  insert  manner  of  killing). 

"This  at ,  on  the of ,  19—." 

(It)  Charge:  "Assault  with  intent  to  kill,  to  the  pre- 
judice of  good  order  and  military  discipline." 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did  feloniously  assault  Sergeant 

1  See  sec.  3  of  the  act  of  July  27,  1892;  page  107,  note  2,  ante. 


134  FORMS  FOR  CHARGES. 

,  Co. , U.  S.  Infantry,  by  shooting  at 

him  with  a  pistol  (or,  by  stabbing  him  with  a  knife, 
etc. ,  etc. )  with  intent  to  kill. 

"This  at ,  on  the of ,  19—." 

(i)  Charge :  ' '  Burglary,  to  the  prejudice  of  good  order 
and  military  discipline." 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did,  in  the  night-time,  break  into 

and  enter  the  quarters  of  1st  Lieut.  C D , 

U.  S.  Cavalry,  with  intent  to  commit  a  felony,  to  wit : 
{here  describe  the  felony). 

* '  This  at ,  about o'clock  — .  m. ,  on  the  

of ,  19—." 

{j)  Charge:  "Larceny,  to  the  prejudice  of  good  order 
and  military  discipline. " 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did  feloniously  take,  steal,  and  carry 

away ,  of  the  value  of dollars  ($ ),  the  prop- 
erty of  Corporal ,  Co. , U.S. Infantry. 

"This  at ,  on  the of ,  19—." 

(fc)  Charge:  "Embezzlement,  as  defined  in  section 
5488,  Revised  Statutes  of  the  United  States,  in  violation 
of  the  62d  Article  of  War." 

Specification:  "In  that ,  U.  S.  Army,  being 

the  officer  in  charge  for  tho  United  States  of ,  and, 

as  such  officer  in  charge  of  said ,  being  a  disbursing 

officer  of  the  United  States,  and  having  intrusted  to  him 
large  amounts  of  public  money  of  the  United  States, 
did  willfully  and  knowingly  apply  for  a  purpose  not 
authorized  by  law  a  largo  sum  of  the  said  moneys  so 
intrusted  to  him,  by  willfully  and  knowingly  causing 
the  amount  hereinafter  named  to  be  paid  out  of  the 
said  moneys  which  were  subject  to  his  order  and  control 

as  such  officer  in  charge  of  said ,  the  account  on 

which  the  same  was  paid  being  false,  the  amount  paid 
not  being  due  or  owing  from  the  United  States  to  the 
party  paid,  or  to  anyone,  and  he,  the  said ,  well 


FORMS  FOR  CHARGES.  135 

knowing  this  to  be  the  case;  the  said  account,  the 
amount  paid,  and  the  payment  being  that  designated  by 
the  following  voucher  (and  the  entries  therein  and  the 

indorsements  thereon),  submitted  by  the  said ■ , 

with  his  accounts  and  marked  'Appropriation  for .' 

Voucher  No.  ,  $ ,  dated  ,  the  said  pay- 
ment having  been  caused  to  be  made  on  or  about ,  by 

the  said drawing  and  delivering  a  check,  as 

such  officer  in  charge  of ,  by  which  the  payment  was 

ordered  and  directed  to  be  made  out  of  moneys  of  the 
United  States  under  his  control  as  such  officer. 
"This  at ,  on  or  about  the of ,  19 — ." 

[1)  Charge:  "  Perjury,  ^  to  the  prejudice  of  good  order 
and  military  discipline." 

Specification:  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  having  been  duly  sworn,  at  his  own 

request,  as  a  witness  in  his  own  defense  before  a 

court-martial,  convened  at ,  by order  No. , 

dated ,  19 — ,  for  his  trial,  did  willfully,  falsely,  and 

corruptly  testify  as  follows : 

"Question  by  j udge -advocate : ? 

"Answer : . 

"Which  testimony  was  false  in  that  (specify  in  what 
respects),  and  which  testimony  was  known  by  him,  the 

said  A B ,  to  be  false,  was  material  to  the  issue 

then  being  tried,  and  was  given  with  intent  to  deceive 
the  court. 

"This  at ,  on  the of ,  19—." 

1  Wharton  says  (Criminal  Law,  §1259):  "Perjury  before  courts-martial 
is  by  statute  made  indictable  in  most  jurisdictions;  but  even  when  a  statute 
does  not  apply,  the  weight  of  authority  is  that  it  is  perjury  at  common  law." 
It  is  a  statutory  crime,  under  sec.  5392,  R.  S.  So  that  false  swearing  before 
a  court-martial,  if  it  possesses  the  other  elements  of  perjury,  is  perjury,  and 
can  be  tried  as  such  by  court-mai-tial  under  the  62d  A.  W.  The  rules  of 
evidence  in  regard  to  perjury  will  then  apply.  When  any  of  the  elements 
of  perjury  are  lacking  the  offense  will  properly  be  charged  as  "  false  swear- 
ing; "  e.  g.,  when  the  matter  is  not  material  to  the  issue. 


136  STATEMENT    OF  SERVICE. 

STATEMENT  OF  SERVICED 

Statement  of  service  of ,  Company  , 

Regiment .     {Required  by  paragraph  1028,  Army 

Regulations. ) 

FORMER  SERVICE. 


Date  of  enlistment. 


Date  of  discharge. 


Character  on  discharge. 


Date  of  present  enlistment ,  19 — . 

Date  of  confinement  under  present  charges  — 
19—. 

(Place. )  Commanding 

(Date.) 


STTRGEOIf'S  REPORT  OX  ALLEGED  DESERTER. 

Fort , 

,  19—. 

Sir:  In  compliance  with  par.  ,  A.  R.,  I  have  the 

honor  to  report  that  I  have  critically  examined , 

an  alleged  deserter,  and  find  him  fit  for  service  {or,  unfit 
for  service  on  account  of ) . 

To  the  Surgeon. 

Post  Adjutant. 

'  See  page  GO,  par.  6,  ante.     This  form  will  bo  printed  on  official  letter 
paper. 


RECORD  OF  GENERAL  COURT-MARTIAL.     137 
RECORD  OF  A  GET^ERAr.  COURT-MARTIAL. i 

Sec.  I. — Form  for  Record. 
Page  1.2 

{Inmargin.y 

Case  1. 

Proceedings'*  of  a  general  court-martial  which  con- 
vened at ,  ,  pursuant  to  the  following  order : 

{Here  insert  a  literal  copy  of  the  order  appointing  the 
court,  and,  following  it,  copies  of  any  orders  modifying 
the  detail. ) 

Headquarters  Department  of , 

, ,  19-. 

Special  Orders,  ) 
No.  — .  \ 

A  general  court-martial  is  appointed  to  meet  at , 

,  at .  m. ,  on ,  19 — ,  or  as  soon  there 

after  as  practicable,  for  the  trial  of  such  persons  as  may- 
be properly  brought  before  it. 

DETAIL  FOR  THE  CX)URT. 

Major ,  5th  Cavalry. 

Captain ,  2d  Artillery. 

Captain ,  assistant  surgeon. 

1st  Lieutenant ,  10th  Infantry. 

1st  Lieutenant ,  5th  Cavalry. 

2d  Lieutenant ,  2d  Artillery. 

2d  Lieutenant ,  10th  Infantry. 

1st  Lieutenant ,  5th  Cavalry,  judge-advocate. 


iSee  "Record  of  proceedings,"  page  59,  arUe.  The  record  will  be  clear 
and  legible,  and,  if  practicable,  without  erasure  or  interlineation. 

2  The  pages  of  the  record  will  be  numbered  and  margins  of  1  inch  will  be 
left  at  the  top,  bottom,  and  left  side  of  each  page. 

3  Words  inclosed  in  parentheses,  (  ),  or  brackets,  [  ],  are  simply  explana- 
tory, and  will  not  be  copied  in  the  record. 

4 "Every  party  tried  by  a  general  court-martial  shall,  upon  demand 
thereof,  made  by  himself  or  by  any  person  in  his  behalf,  be  entitled  to  a 
copy  of  the  proceedings  and  sentence  of  such  court."  (114th  A.  W.)  Appli- 
cations for  copies  under  tliis  article  will  be  addressed  to  the  Judge-Advocate 
General.    (Par.  995,  A.  E.) 


138    RECORD  OF  GENERAL  COURT-MARTIAL. 

{If  less  than  thirteen  members  are  detailed,  the  order 
ivill  state :) 

A  greater  number  of  officers  can  not  be  assembled  with- 
out manifest  injury  to  the  service. 

(In  case  travel  is  necessary,  the  following  sentence  will 
he,  added :) 

The  journeys  required  in  complying  with  this  order 
are  necessary  for  the  public  service. 

By  command  of  Brigadier  General : 

(Signed)  , 

Assistant  Adjutant  General. 

Fort , 

,  19—. 

The  court  met  pursuant  to  the  foregoing  order  at 
o'clock  — .  m. 

PRESENT.! 

Major ,  5th  Cavalry. 

Captain ,  assistant  surgeon. 

1st  Lieutenant ,  10th  Infantry, 

1st  Lieutenant ,  5th  Cavalry. 

2d  Lieutenant ,  2d  Artillery. 

1st  Lieutenant ,  5th  Cavalry,  judge-advocate. 


Captain ,  2d  Artillery. 

2d  Lieutenant ,  10th  Infantry. 

{If  the  cause  of  absence  is  known,  it  will  be  recorded, 
if  unknown,  it  will  be  so  stated.y 

1  In  the  record  of  the  proceedings  of  a  court-martial,  at  its  organization 
for  the  trial  of  a  case,  the  officers  detailed  as  members  and  judge-advocate 
will  b«  noted  by  name  as  present  or  absent.  In  the  record  of  the  proceed- 
ings of  subsequent  sessions  the  following  form  of  words  will  be  used,  sub- 
ject to  such  modifications  as  the  facts  may  require:  "Present,  all  the 
members  of  the  court  and  the  judge-advocate."  When  the  absence  of  an 
officer  who  has  not  qualified,  or  who  has  been  relieved  or  excused  as  a  mem- 
ber, has  been  accounted  for,  no  further  note  will  be  made  of  it. 

2 It  is  the  duty  of  the  judge-advocate  to  ascertain,  if  possible,  the  cause 
of  absence.  If  a  member  is  absent  by  order,  the  number  and  date  of  order 
will  be  given  ;  if  absent  sick,  a  surgeon's  certificate  of  sickness  and  inability 
to  attend  will  be  furnished  by  the  absent  member,  and  appended  to  the 
record. 


HECORD  O^  GENERAL  COtJRT-MARTlAL.     139 

The  court  then  proceeded  to  the  trial  of  Private  

,  Battery , U.  S.  Artillery,  who,  having  been 

brought  before  the  court,  stated  that  he  did  not  desire 
counsel ;  (or)  introd\iced as  counsel. 

[Reporter.]  ^ 

I was  duly  sworn  as  reporter.  ^ 

The  order  convening  the  court  ^  was  read  to  the  ac 

cused,  and  he  was  asked  if  he  objected  to  being  tried  by 

any  member  present  named  therein ;  to  which  he  replied 

in  the  negative. 

[Challenges.] 

(or)  that  he  objected  to on  the  following 

grounds : 

(Insert  objections. ) 

The  challenged  member  stated : 

{Insert  the  statement  of  the  challenged  member,  who 
should  always  be  7'eqnested  to  respond  to  the  challenge 
and  inform  the  court  upon  its  merits.  Should  the 
accused,  after  this  statement,  desire  to  put  the  chal- 
lenged member  upon  his  voir  dire,  the  record  should 
continue :) 

The  accused  having  requested  that  the  challenged 

member  be  sworn  upon  his  voir  dire,^ was 

duly  sworn  by  the  judge-advocate,  and  testified  as 
follows:^ 

1  To  facilitate  use  of  form,  subheads  "  reporter,'  "challenges,"  etc.,  are 
inserted  and  followed  by  marginal  lines.  To  use  form  in  case  no  reporter  is 
employed,  follow  form  to  "reporter,"  and  then  omit  ivsfar  as  marginal  line 
under  "reporter"  extends.  In  like  manner  omit  when  necessary  for  other 
subheads.  '^ 

2  The  reporter  must  be  sworn  in  each  case.  For  form  of  oath,  see  page 
29,  par.  4,  ante. 

2  (And  the  order  or  orders  modifying  the  detail,  if  any.) 

*  For  form  of  oath,  see  page  30,  par.  (J,  ante. 

5  The  form  of  examination  should  be  similar  to  that  given  for  witness  for 
the  defense,  page  144,  post.  The  accused  should  first  ask  his  questions,  and 
then  the  judge-advocate  and  court  such  as  they  may  deem  pertinent. 


140    RECORD  OF  GENERAL  COURT-MARTIAL. 

The  challenged  member,  the  accused,  and  judge- 
advocate  then  withdrew, '  and  the  court  was  closed, 
and  on  being  opened  the  president  announced  in 
their  presence  that  the  objection  of  the  accused  was 
not  sustained  2  (or)  that  the  objection  was  sustained. 
then  withdrew. 

The  accused  was  asked  if  he  objected  to  any  other 
member  present ;  ^  to  which  he  replied  in  the  nega- 
tive, (or) that  he  objected  to on  the  follow- 
ing grounds . 

(Insert  objection  in  full  and  record  as  before. ) 

The  members  of  the  court  and  the  judge-advocate 
were  then  duly  sworn.'* 

[Interpreter.] 

I       (If  an  interpreter  is  required,  he  should  now  be 
sworn. ) 

[Delay.] 

(If  delay  is  desired  for  cause  known,  application 
should  now  be  made  and  the  proceedings  of  the  court 
recorded.^  If  no  delay  is  requested,  the  record  should 
continue:) 

The  accused  was  then  arraigned  upon  the  following 
charges  and  specifications : 

Charge  I : . 

Specification  1st : . 

Specification  2d : . 

1  See  page  60,  par.  5,  ante. 

2  In  case  of  a  tie  vote  see  page  22,  note  2,  ante. 

8  Only  one  member  at  a  time  can  be  challenged,  and  a  record  of  the  pro- 
ceedings in  each  case  must  be  made. 

•*  Whenever  the  same  court-martial  tries  more  than  one  prisoner  on  sepa- 
rate and  distinct  charges,  the  court  will  be  sworn  at  the  commencement  of 
each  trial  and  separate  proceedings  in  each  case  prepared. 

^  See  page  30,  ante. 


RECORD  OF  GENERAL  COURT-MARTIAL.      141 

Charge  II : . 

[Plea  in  bar.] 

To  which  the  accused  submitted  the  following 
special  plea  in  bar  of  trial :  ^ 

(or) 

To  which  the  accused  pleaded  as  follows : 

To  the  1st  specification,  1st  charge,  "Guilty;"  (or) 
"Not  guilty." 

To  the  2d  specification,  1st  charge,  "Guilty;"  (or) 
"Not  guilty." 

To  the  1st  charge,  ' '  Guilty ; "  (or) ' '  Not  guilty. " 

To  the  1st  specification,  2d  charge,  etc. 

Sergeant  John  Jones,  Co.  , Infantry,  a  -v^if^it- 

ness  for  the  prosecution,  was  duly  sworn,  and  testified 
as  follows : 

Direct  examination: 

Questions  by  the  judge-advocate :  ^ 

Q.  Do  you  know  the  accused  ?    If  so,  state  who  he  is. 

A.  I  do ;  Private  — ,  Battery , Artillery. 

( The  succeeding  questions  of  the  judge-advocate  and 
their  answers  should  follow  in  order,  y^ 

Cross-examination  : 
Questions  by  the  accused : 
Q- ? 

(If  the  accused  declines  to  cross-examine  the  witness 
the  record  shoidd  state :) 
The  accused  declined  to  cross-examine  the  witness. 

1  If  a  special  plea  is  made,  the  plea,  the  reply  of  the  judge-advocate,  and 
the  action  of  the  court  thereon  will  be  fully  stated;  see  page  32,  par.  7,  ante, 
and  page  145,  note  2,  post. 

-  When  considered  desirable  the  first  question  may  be  as  to  the  identity 
of  the  witness. 

'■^  The  record  should  set  forth  fully  all  the  testimony  introduced  upon  the 
trial,  the  oral  portion  as  nearly  as  practicable  in  the  precise  words  of  the 
witness.  If  the  court  should  decide  to  expunge  any  part  it  will  not  be 
literally  expunged  or  omitted  from  the  record  but  will  not  be  thereafter 
considered  as  part  of  the  evidence. 


142   RECORD  OF  GENERAL  COURT-MARTIAL. 

Reexamination  : 
Questions  by  the  judge-advocate: 
Q- ? 

Examination  by  the  court: 
Q. ? 

[Objection  to  question.]  ' 

Question  by  a  member : ? 

To  this  question,  the  accused  (or  party  objecting) 
objected  as  follows : 

{Insert  objection. ) 

To  which  the  member  replied : 

{Insert  reply. ) 

The  accused  and  judge-advocate  withdrew  and  the 
court  was  closed,  and  on  being  opened  the  president 
announced  in  their  presence  that  the  objection  was 
sustained, 
(or)  was  not  sustained. 

{In  the  latter  case  the  record  should  continue:) 

The  question  was  then  repeated  by  the  judge- 
advocate. 

A. . 

{If  the  court  considers  it  necessary  to  hear  the  testimony 
of  the  witness  read  or  the  tvitness  desires  to  have  certain 
testimony  read  for  correction  the  record  will  show  the 
fact  and  the  corrections,  if  any. ) 

'  If  a  question,  put  by  a  member,  is  objected  to  by  another  member,  the 
judge-advocate,  or  the  accused,  and  the  objection  is  sustained,  it  will  be 
recorded  as  a  question  by  a  member,  and  not  answered.  If  the  objection  is  not 
sustained  it  will  be  recorded  as  a  question  by  the  court,  repeated  by  the  judge- 
advocate,  and  must  be  answered.  If  a  question  is  objected  to  by  anyone,  at 
any  time  during  the  trial,  the  above  method  of  recording  the  action  of  the 
court  will  be  followed. 


RECORD  OF  GENERAL  COURT-MARTIAL.     143 

(At  the  close  of  the  prosecution  the  record  should  con- 
tinue:) 

The  judge-advocate  announced  that  the  prosecution 
here  rested. 

{If  the  court  adjourns  to  meet  another  day  the  record 
should  continue:) 

The  court  then,  at  o'clock  — .  m.,  adjourned  to 

meet  at o'clock  — .  m. ,  on . 

C D , 

1st  Lieut. , 

Judge-Advocate.^ 

Fort , 

The  court  met,   pursuant  to  adjournment,  at  

o'clock  — .  m. 

PRESENT.2 

All  the  members  of  the  court  and  the  judge-advocate.  ^ 
The  accused,  his  counsel,  and  the  reporter  were  also 
present. 

{If  the  proceedings  of  the  previous  day  are  required 
by  the  court  to  he  read,  the  fact  will  be  recorded  in  the 
following  form :) 

The  proceedings  of were  read^  and  approved. 

(or)  corrected  as  follows: 

(In  latter  case,  enumerate  corrections,  giving  page  and 
line  on  which  they  occur. ) 

1  The  judge-advocate  should  sign  each  day's  proceedings.     (Par.  1055, 
A.  R.) 

2  See  page  138,  note  1,  ante. 

3  If  any  member  is  absent  add  except (giving  cause  of  absence,  if  known). 

4  Tlie  reading  of  previous  proceedings  will  be  dispensed  with,  unless  for 
special  reason  considered  necessary  by  the  court.    Sec  page  60,  par.  2,  ante. 


U4   RECORD  OF  GENERAL  COURT-MARTIAL. 

Corporal  John  Smith,  Co. , Infantry,  a  wit- 
ness for  the  defense,  was  duly  sworn  and  testified  as 
follows : 

Direct  examination: 
Question  by  the  judge-advocate:'  Do  you  know  the 
accused  ?    If  so,  state  who  he  is. 

Questions  by  the  accused: 
Q. ? 

(TTie  examination  should  he  conducted  as  in  case  of  a 
witness  for  the  prosecution,  the  judge-advocate  cross- 
examining,  and  the  accused,  if  he  so  desires,  reexamin- 
ing the  uyitness. ) 

{Should  the  accused  ivish  to  testify  in  his  own  behalf, 
the  record  will  continue :) 

The  accused,  at  his  own  request,  was  duly  sworn  as  a 
witness,  and  testified  as  follows: 

Q. — ? 

A. . 

(T7ie  examination  of  the  accused  should  be  conducted 
in  the  same  manner  as  that  of  any  other  witness. ) 

(If  the  accused  has  no  other  witness  to  call,  the  record 
should  continue :) 

The  accused  had  no  further  testimony  to  offer  and  no 
statement  to  make. 

{or)  having  no  further  testimony  to  offer,  made  the  fol- 
lowing verbal  statement  in  his  defense. 

1  Though  this  is  a  witness  for  the  defense,  the  judge-advocate  will  ask  the 
preliminary  question  for  the  purpose  of  determining  his  identification  of 
the  accused.  When  considered  desirable,  the  first  question  may  be  as  to  the 
identity  of  the  witness. 


RECORD  OF  GENERAL  COURT-MARTIAL.     145 

(or)  having  no  further  testimony  to  offer,  submitted  a 
written  statement  in  his  defense,  which  was  read  to  the 
court,  and  is  hereto  appended  and  marked  A. ' 

(or)  requested  until  o'clock  — .  m.  to  prepare  his 

defense. 

(If  the  court  takes  a  recess  during  the  time  asked  for, 
the  record  will  continue :) 

The  court  then  took  a  recess  until o'clock — .  m. ;  at 

which  hour  the  members  of  the  court,  the  judge-advo- 
cate, the  accused,  his  counsel,  and  the  reporter  resumed 
their  seats. 

{Or,  if  the  court  has  other  business  before  it,  the  record 
may  continue:)  ^ 

The  court  then  proceeded  to  other  business,  and  at 

o'clock  — .  m.  resumed  the  trial  of  this  case ;  at  which 
hour,  etc. 

The  accused  submitted  his  defense,  which  was  read  to 
the  court,  and  is  hereto  appended  and  marked  B.^ 

The  judge-advocate  submitted  the  case  without  re- 
mark, 
(or)  replied  as  follows:^ 

{Insert  reply.) 
{or)  submitted  and  read  to  the  court  a  written  reply, 
which  is  hereto  appended  and  marked  C. 

1  All  documents  aud  papers  made  part  of  the  proceedings,  or  copies  of 
them,  will  be  appended  to  the  record,  in  the  order  of  their  introduction, 
after  the  space  left  for  the  remarks  of  the  reviewing  authority,  aud  marked 
in  such  a  manner  as  to  afford  easy  reference.  It  is  not  necessary  to  encum- 
ber a  record  by  spreading  upon  it  documents  or  other  writings,  or  matter 
excluded  by  the  court.  The  record  should  simply  specify  the  character  of 
the  writings  and  the  grounds  iipon  which  they  wore  ruled  out. 

2  The  statement  of  the  accused,  or  argument  in  his  defense,  and  all  pleas 
in  bar  of  trial  or  in  abatement,  when  in  writing,  should  be  signed  by  the 
accused,  referred  to  in  proceedings  as  having  been  submitted  by  him,  and 
appended  to  the  record,  whether  he  is  defended  by  counsel  or  not. 

3  The  judge-advocate  is  entitled  by  usage  to  sum  up  the  case  and  present 
an  argument  at  the  conclusion  of  the- trial,  even  though  the  accused  declines 
to  make  argument  or  statement. 

12915 10 


146    RECORD  OF  GENERAL  COURT-MARTIAL. 

The  accused  and  judge-advocate  then  withdrew  and 
the  court  was  closed,  and  finds  the  accused,  Private 
,  Battery , U.  S.  Artillery: 

Of  the  1st  specification,  1st  charge:  "Guilty;"  (or) 
"Not  guilty." 

Of  the  2d  specification,  1st  charge:  "Guilty,  except 

the  words  ' ,'  and  of  the  excepted  words  Not 

guilty." 

Of  the  first  charge :  '  'Guilty ; "  {or)  ' '  Not  guilty ; "  (or) 
"Not  guilty,  but  guilty  of,  etc., ." 

Of  the  1st  specification,  2d  charge,  etc. 

[Previous    convictions    when    accused    is    found 

GUILTY.] 

(If  the  accused  is  found  guilty  and  the  punishTnent 
is  discretionary,^  the  record  should  continue:) 

The  judge-advocate  and  accused  were  then  recalled 
and  the  court  opened,  and  the  judge-advocate  stated 
that  he  had  no  evidence  of  previous  convictions  to 
submit. 

(or)  read  the  evidence  of  previous  convictions  '^  hereto 
appended  and  marked  D,  E,  etc. 

{If  the  accused  has  any  statement  to  make  in  regard 
to  his  jirevious  convictions,  it  will  he  recorded. ) 

The  accused  and  judge-advocate  then  withdrew  and 

the  court  was  closed,  and  sentences  him,  Private 

,  Battery ,  U.S. Artillery, . 

[No  previous  convictions,  or  accused  acquitted.] 
{If  the  punishment  is  not  discretionary,  or  the  ac- 
cused is  acquitted,  the  record,  after  the  Jindirigs  are 
stated,  should  continue :) 

And  the  court  does  therefore  sentence  him,  etc. 
{or)  does  therefore  acquit  him,  Private ,  Bat- 
tery   , U.  S.  Artillery. 

1  See  page  55,  par.  2,  ante. 

2  See  "Previous  convictions,"  page  44,  ante.  When  the  proof  produced 
is  the  copy  furnished  to  the  company  or  other  commander,  in  accordance 
with  par.  1031,  A.  R.,  it  will  he  returned  to  him  and  a  copy  of  it  attached  to 
the  record  of  the  general,  regimental,  or  garrison  court  trying  the  case. 
(Par.  1038,  A.  R.) 


RECORD  OF  GENERAL  COURT-MARTIAL.     147 

The  judge-advocate  was  then  recalled,  and  the  court 

at .  m.  proceeded  to  other  business. 

{or)  adjourned  until .  m.,  the inst. 

(or)  adjourned  to  meet  at  the  call  of  the  president. 
(or,  on  completion  of  the  trial  of  the  last  case  before  the 
court)  adjourning  sine  die. 

A B , 

Major , 

President. 

C D , 

1st  Lieut. , 

Judge-Advocate. 
(At  least  two  blank  images  will  be  left  after  the  adjourn- 
ment for  the  decision  and    orders    of  the   reviewing 
authority. ) 

FOUM  OV  BKIEF. 

{The  papers  forming  the  complete  record  ivill  be 
fastened  together  at  the  top,  and  the  record  folded  in 
four  folds,  and  briefed  on  the  first  fold  as  follows:)^ 

Private,  Co. , . 


Trial  by  general  court-martial 

at ; 

Commencing ,  19 — ; 

Ending ,  19—. 

President : 
Major , 


Judge- Advocate : 
1st  Lieut.  — 


iWhen  the  record  is  completed,  the  judge-advocate  will  forward  it  with- 
out delay  to  the  convening  authority.  (Par.  1057,  A.  R.)  See  also  page  62, 
par.  3,  and  page  69,  par.  1,  ante. 


148   RECORD  OF  GENERAL  COURT-MARTIAL. 

Sec.  II.— Form  for  revision  op  record. i 
Fort , 

The  court  reconvened  at o'clock  — .  m. ,  pursuant 

to  the  following  order : 

{Insert  copy  of  order. ) 
(or)  pursuant  to  the  following  indorsement: 

(Insert  copy  of  indorsement. ) 


ABSENT. 

(Insert  names  of  absentees,  and  state  cause  of  absence, 
if  known. ) 

The  judge-advocate  read  to  the  court  the  foregoing 
order. 

(or)    the    foregoing    indorsement    of    the    convening 
authority. 

The  judge-advocate  then  withdrew,  and  the  court 
was  closed  and  revokes  its  former  findings,  and  finds 
the  accused,  etc. 

(or)   revokes  its  former  sentence,  and  sentences  the 
accused,  etc. 

(or)  respectfully  adheres  to  its  former  findings  and 
sentence. 
(or)  amends  the  record  by,  etc.^ 

The  judge-advocate  was  then  recalled  and  the  court 

at .  m. ,  etc. 

A B , 

C D ,  Major , 

1st  Lieut. ,  President. 

Judge- Advocate. 

(The  record  of  revision  ivill  be  appended  to  the  original 
proceedings  and  the  ivhole  indorsed  and  forwarded  as 
before. ) 

1  See  "  Revision  of  record,"  page  61,  ante. 

2  If  the  flndiugs  aud  sentence  are  to  be  considered,  all  the  members  who 
voted  on  them  should,  if  possible,  be  present.  At  least  five  members  of  the 
court,  who  acted  ujion  the  trial,  must,  and  the  judge-advocate  should,  be 
present  at  a  revision  ;  but  it  is  in  general  neither  necessary  nor  desirable 
that  the  accused  should  be  present. 

3  See  page  61,  par.  2,  ante. 


RECOllt)   OB*  A   SlTMMAllY   COUtlT. 


149 


RECORD  OF  A  SUMMARY  COURT. 

Sec.  I. — Form  for  record.' 

Record  of  a  summary  court  at ,  appointed 

by Orders  No. ,  Headquarters ,  19 — . 


Name,  rank, 

company,  aiul 

regiment. 


O   CS 


Synopsis  of 
specification. 


Is 


Sentence, 
witii  signa- 
ture of  trial 
officer. 


■S  53  ^  a 


Sec.  II. — Remarks  on  record.  ^ 
1.  The  synopsis  of  specification  will  be  as  brief  as  is 
consistent  with  showing,  in  connection  with  the  Article 
of  War  violated,  the  nature  of  the  offense  and  the  date 
of  its  commission.  For  example,  under  the  32d  Article 
of  War,  the  synopsis  may  be,  "from  1  a.  m.  to  10  p.  m., 
October  10,  1892;"  under  the  33d  Article,  "absent  from 
reveille  roll  call,  October  10,  1892;"  and  under  the  38th 


*  Blank  forms  for  summary  court  record  and  for  monthly  report  of  cases 
tried  (for  form,  sec  page  150,  post)  will  be  furnished  by  the  Adjutant 
General  of  the  Army.  The  new  form  for  the  copy  of  summary  court  record, 
to  be  used  as  evidence  of  previous  convictions,  is  intended  for  the  purpose 
of  reducing  this  evidence  to  the  smallest  space  and  bulk.  The  blanks  are 
not  intended  for  only  one  case  each,  but  for  as  many  cases  as  there  is  room 
for  on  the  blank.  The  margin  at  the  left  of  the  blank  is  intended  for  bind- 
ing with  the  court-martial  record.  For  instructions  regarding  evidence  of 
previous  convictions  by  summary  court,  see  page  45,  par.  2,  and  page  73, 
par.  n,  ante. 

2  When  commanding  officer  tries  case  no  approval  is  necessary.  See  par. 
1032,  A.  B. 

3  lu  each  case  the  record  must  show  whether  the  accused  has  consented 
or  refused  to  consent  in  writing  to  trial  by  summary  court  as  proscribed  in 
par.  1029,  A.  R.     See  page  75,  par.  17,  ante. 


150      REPORT  OF  SUMMARY  COURT  CASES. 

Article,  "at  drill,  October  10,  1892."  So  under  the  62d 
Article  it  may  be,  ' '  drunk  in  quarters,  October  10, 1893 ;" 
"absent  from  fatigue,  October  10,  1892;"  "absent  from 
duty  as  company  cook,  October  10,  1892,"  etc. 

The  sentence  will,  when  practicable,  be  recorded  in 
brief,  as  for  example,  "forfeiture  of  $10,  and  ten  days' 
confinement  at  hard  labor," 

2.  When  the  only  officer  present  with  a  command 
sits  as  a  summary  court,  no  approval  of  the  sentence  is 
required  by  law,  but  he  should  sign  the  sentence  as  such 
officer  and  date  his  signature. ' 

3.  The  name  of  the  post  or  other  place  will  not  be 
given  under  the  head  of  "action  of  officer  appointing 
court,  with  date  and  signature,"  as  this  information 
appears  at  the  head  of  the  record. 


MONTHLY  REPORT  OF  SUMMARY  COURT  CASES. 

Report  of  cases^  tried  by  summary  court  at ,  for 

the  month  of ,  19 — . 


Name,  rank, 

I  company,  and 

regiment. 


-Synopsis  of 
specification. 


Sentence. 
(If  mitigated,  give 
sentence  as  miti- 
gated only.  Signa- 
ture of  trial  oiHcer 
not  to  be  copied. 
Give  date  of  signa- 
ture of  officer  ap- 
pointing court.) 


1  Par.  1032,  A.  R. 

2  The  report  of  each  case  must  show  whether  the  accused  has  consented 
or  refused  to  consent  in  writing  to  trial  by  summary  court,  as  prescribed  in 
par.  1029,  A.  K. 


RECORD  OB^  GARRISON  COURT-MARTIAL.    151 
RECORD  OF  A  GARRISON    COURT-T^ARTIAL..^ 

Sec.  I. — Form  for  record. 

Case . 

Proceedings  of  a  garrison  court-martial  convened  at 

,  pursuant  to  the  following  order: 

Fort , 

Orders,  [ 

No .  f 

A  garrison  court-martial  will  convene  at  this  post  at 
o'clock  a.  m.,  on ,  19 — ,  or  as  soon  there- 
after as  practicable,  for  the  trial  of  such  persons  as  have 
refused  to  consent  in  writing  to  trial  by  summary  court.  ^ 

DETAIL  FOK  THE  COURT. 

Captain . 

1st  Lieutenant . 

2d  Lieutenant . 

2d  Lieutenant ,  judge-advocate. 

By  order  of : 

(Signed)  : , 

1st  Lieutenant , 

Adjutant. 

Fort , 

,  19—. 

The  court  met,  pursuant  to  the  foregoing  order,  at 
■ o'clock  — .  m. 


Captain . 

1st  Lieutenant . 

2d  Lieutenant . 

2d  Lieutenant ,  judge-advocate. 

1  The  form  of  record  for  a  garrison  court-martial  differs  from  that  for  a 
general  court-martial  only  in  respect  to  the  form  of  the  order  appointing  the 
court.  The  form  here  given  is  that  for  a  case  in  which  a  plea  of  "  Guilty  " 
is  entered;  if  the  prisoner  pleads  "Not  guilty,"  or  makes  a  special  plea, 
the  form  for  record  of  a  general  court  will  be  followed. 

2  See  page  77,  par  4,  ante. 


152    RECORD  OF  GARRISON  COTJR'f-MARTlAL. 

The  court  then  proceeded  to  the  trial  of  Private 

,  Company , Infantry,  who,  having  refused 

to  consent  in  writing  to  trial  by  summary  court,  was 
brought  before  the  court,  and  having  heard  the  order 
convening  it  read,  was  asked  if  he  had  any  objection  to 
being  tried  by  any  member  named  therein ;  to  which  he 
replied  in  the  negative. 

The  members  of  the  court  and  the  judge -advocate 
were  then  duly  sworn,  and  the  accused  was  arraigned 
upon  the  following  charge  and  spegification : 

Charge : . 

Specification : . 

To  which  the  prisoner  pleaded : 

To  the  specification,  "  Guilty." 

To  the  charge,  "  Guilty." 

{In  case  testimony  is  taken,  it  is  not  recorded.^) 

The  judge-advocate  announced  that  the  prosecution 
here  rested. 

The  prisoner  stated  that  he  had  no  testimony  to  offer 
or  statement^  to  make. 

The  accused  and  judge-advocate  then  withdrew,  and 

the  court  was  closed  and  finds  the  accused,  Private 

,  Company , Infantry. 

Of  the  specification,  "Guilty." 

Of  the  charge,  "  Guilty." 

The  judge -advocate  and  the  accused  were  then  recalled 
and  the  court  opened;  and  the  judge-advocate  stated 
that  he  had  no  evidence  of  previous  convictions  to 
submit,  (or)  read  the  evidence  of  previous  convictions 
hereto  appended  and  marked  A,  B,  etc. 

The  accused  and  judge-advocate  then  withdrew,  and 

the  court  was  closed  and  sentences  him.  Private  

,  Company , Infantry,  etc. 

1  Par.  1055,  A.  R.  The  record  must  give  the  names  of  witnesses  exam- 
ined, both  for  the  prosecution  and  defense,  and  will  state  the  fact  as  to 
their  having  been  duly  sworn. 

^Statements  and  arguments  will  not  be  reduced  to  writing  in  the  record. 


RECORD  Ofi^  tlEGtMENTAL  COtTRt-MARtlAL.    153 

The  judge-advocate  was  then  recalled  and  the  court 

at .  m.,  etc. 

A B , 

Captain  — — , 

President. 

C D , 

Sd  Lieut. , 

Judge- Advocate. 
{A  sine  die  adjournment  will  he  added  to  the  last  case 
before  the  court,  and  the  record  of  each  case  folded  and 
indorsed  in  the  same  manner  as  that  for  a  general 
court-martial. ) 

Sec.  II. — Remarks  on  the  Record. 

1.  The  decision  and  orders  of  the  post  commander, 
properly  dated  and  over  his  official  signature,  will  fol- 
low immediately  after  the  sentence,  adjournment,  or 
other  final  proceeding  of  the  court  in  the  case. 

2.  ' '  The  complete  proceedings  of  a  garrison  or  regi- 
mental court  will  be  transmitted  without  delay  by  the 
post  or  regimental  commander  to  department  head- 
quarters." ^ 


RECORD  OF  A  REGIMENTAL   COURT-MARTIAL.2 

Case . 

Proceedings  of  a  regimental  court-martial  convened 

at ,  pursuant  to  the  following  order : 

Fort , , 

, ,  19—. 

Orders,  ) 
No. .  \ 

A  regimental  court-martial  will  convene  at  this  post 
at o'clock  a.  m.,  on , ,  19 — ,  or  as  soon  there- 
after as  practicable,  for  the  trial  of  such  persons  as  have 
refused  to  consent  in  writing  to  trial  by  summary  court.  ^ 

J  Par.  1058,  A.  E. 

2  The  form  of  record  for  a  regimental  court  differs  from  that  for  a  garri- 
son or  a  general  court  only  in  respect  to  the  order  convening  the  court. 

3  See  page  18]  par.  3,  ante. 


154     PROCEEDINGS   OF  RETIRING  feOARD. 

DETAIL  FOR  THE  C0URT.3 

{Complete  record  as  in  case  of  garrison  court-martial.) 


PROCEEDINGS  OF  A  RETIRIJiTG  BOARD. 

Proceedings  of  an  Army  retiring  hoard  convened  at 
hy  virtue  of  the  following  orders : 

Headquarters  of  the  Army, 
Adjutant  General's  Office, 

Washington, ,  19 — . 

Special  Orders,  ) 

No. .         ] 

The  following  order  has  been  received  from  the  War 
Department : 

War  Department,  Washington, ,  19 — . 

By  direction  of  the  President,  and  in  accordance  with 
section  1246,  Revised  Statutes,  an  Army  retiring  board 
is  hereby  appointed  to  meet,  at  the  call  of  the  president 

thereof,  at ,  for  the  examination  of  such  officers 

as  may  be  ordered  before  it. 

DETAIL  FOK  THE  BOARD. 

Colonel ,  10th  Infantry. 

Lieutenant  Colonel ,  3d  Infantry. 

Major ,  surgeon. 

Captain ,  assistant  surgeon. 

Captain ,  2d  Artillery. 

1st  Lieutenant ,  10th  Infantry,  recorder. 

Secretary  of  War. 
By  command  of  Lieutenant  General : 

Adjutant  General. 

3  See  pa^e  77,  par.  2;  also  page  99,  note  1,  ante. 


t»tlOCEEDlNGS   OF   RETIRING  BOARD.      155 

,  ,  19-. 

The  board  met  pursuant  to  the  foregoing  order  at  11 
o'clock  a.  m, 

PRESENT. 

Colonel ,  10th  Infantry. 

Lieutenant  Colonel ,  3d  Infantry. 

Major — ,  surgeon. 

Captain ,  assistant  surgeon. 

Captain ,  2d  Artillery. 

1st  Lieutenant ,  10th  Infantry,  recorder. 

Captain ,  ,  appeared  before  the  board 

pursuant  to  par.  ,  Special  Orders  No.  ,  Adju- 
tant General's  Office,  dated ,  19—,  and  stated  that 

he  did  not  desire  counsel ;  (or,  introduced as 

counsel. ) 

The  order  convening  the  board  was  then  read,  and 

Captain was  asked  if  he  had  any  objection  to 

offer  to  any  member  present ;  to  which  he  replied  in  the 
negative.^ 

The  members  of  the  board  and  the  recorder  were  then 
duly  sworn. 

1  (Oj-)  that  he  objected  to on  the  following  gronnds : 

{Insert  objections.) 

The  challenged  member  stated. 

{Insert  the  statement  of  the  challenged  member ,  who  should  be  requested  to  respond 
to  the  challenge  and  inform  the  board  vpon  its  merits.  Should  the  officer  before  the 
board  for  examination  desire  to  put  the  challenged  member  on  his  voir  dire,  the 
record  should  continue :) 

Captain ,  having  reqnegted  that  the  challenged  member  be  sworn 

on  his  voir  dire, was  dnly  sworn  by  the  recorder,  and  testified  as 

follows : 

***** 

The  board  was  then  closed,  and,  on  being  opened,  its  decision  was  an- 
nounced that  the  objection  was  not  sustained,  (or)  that  the  objection  was 
sustained.  {In  the  latter  case  the  record  should  state  that  the  challenged  member 
then  withdrew.) 

Captain was  then  asked  whether  he  objected  to  any  other  mem- 
ber ;  to  which,  etc.,  as  before. 

{Five  being,  under  sec.  12k6,  B.  S.,  the  minimum  number  of  members  of  a 
retiring  board,  it  must,  ivheti  reduced  below  that  number  bij  challenge,  or  if  the 
board  is  left  without  the  proportion  of  medical  officers  required  by  said  section, 
adjourn  and  report  the  J  acts  to  the  convening  authorittj.) 


156       fROCEEblNGS  OV'  RmiRiNG  BOARD. 

(If  the  officer  desires  to  be  retired,  the  record  will  oon- 
tinue :) 

Captain was  then  asked  whethei:  he  desired 

to  be  retired,  and  answered  in  the  affirmative.     He  was 
then  duly  sworn  as  a  witness,  and  testified  as  follows : 

Q.  Please  state  the  nature  of  your  disability  and  its 
cause,  and  how  long  you  have  suffered  from  it  ? 

A.  ( The  officer  can  here  make  an  oral  statement  or  sub- 
mit a  tcritten  one.  If  a  written  statement  is  suhriiitted 
the  record  will  state :) 

The  witness  submitted  a  written  statement,  which  was 
read  to  the  board,  and  is  hereto  attached  marked  "A." 

Q.  Is  the  statement  submitted  by  you  correct  ? 

A.  Yes. 

( The  board  may  then  ash  further  questions. ) 

Q.  Do  you    desire  to  make  any  further  statement  ? 

A.  .  ' 

( When  the  officer  objects  to  retirement,  he  will  not  be 
examined  at  this  stage  of  the  proceedings,  but. may  intro- 
duce evidence  or  make  a  statement,  as  hereinafter  indi- 
cated. ) 

Major ,  surgeon,  a  member  of  the  board,  was 

then  duly  sworn,  and  testified  as  follows : 

Q.  Please  submit  to  the  board  the  result  of  your  ex- 
amination of  Captain . 

The  witness  submitted  a  written  report  signed  by  him- 
self and  Assistant  Surgeon ,  also  a  member  of 

the  board,  which  was  read  to  the  board  and  is  attached, 
marked  "B." 

Q.  From  what  cause  does  Captain  's  dis- 
ability proceed  ? 

A.  . 

Q.  Is  the  disability  permanent  ? 

A.  . 

Q.  Is  Captain 's  disability  such  as  to  incapacitate 

him  for  active  service  ? 

A.  . 

*  *  *  *  * 


PROCEEDINGS   OF  RETIRING   BOARD.       157 

( The  examination  of  the  witness  should  be  conducted 
so  as  to  bring  out  all  material  facts  on  the  lines  indi- 
cated. ) 

Captain stated  that  he  had  no  question  to 

ask,  (or)  asked  the  following  questions: 

*  *  *  *  * 

(The  other  medical  member  of  the  board  should  then  be 
similarly  interrogated. ) 

The  recorder  then  submitted  certain  papers  referred 
to  the  board  from  the  Adjutant  General's  Office,  which 
were  read  to  the  board,  and  are  attached,  marked . 

Captain had  no  further  evidence  to  submit 

nor  statement  to  make.     (When  there  is  such  evidence 
or  statement,  the  record  will  dtdy  set  it  forth. ) 

The  board  was  then  closed  for  deliberation,  and,  hav- 
ing maturely  considered  the  case,  finds  that  Captain 

is  incapacitated  for  active  service  and  that  the 

cause  of  said  incapacity  is .     And  the  board  further 

finds  that  said  incapacity  i§  {or  is  not)  an  incident  of 
service. 

The  board  then  adjourned. ' 

> 

,  President  of  the  Board.  ^ 

Recorder. 

1  {Or  when  the  board  wishes  to  hear  the  record  read :) 

The  board  then  adjourned  to  meet at o'clock  — .  m. 


SECOND   day's   proceedings. 

The  board  met  pursuant  to  adjournment. 

Present:  All  the  members  and  the  recorder. 

The  foregoing  proceedings  were  then  read  and  approved. 

The  board  then  adjourned. 


President  of  the  Board, 


Recorder, 


2  It  is  not  necessary  that  the  i)roceeding8  should  be  authenticated  by  the 
signatures  of  all  the  members  of  the  board. 


158  FORMS  FOR  SENTENCES. 


FORMS  FOR  SENTENCES. 

Form  1.  Reduction:  *  *  *  " to  be  reduced  to  the 
ranks."' 

Form  2.  Confinement :     *    *    *     "  to  be  confined  at 

hard  labor,  under  charge  of  the  post  guard,  for ( — ) 

days." 

Yorm^.  Forfeiture:    *    *    *     "to  forfeit  (— ) 

dollars  of  his  pay.^  now  due  or  to  become  due."^ 

Form  4.  Confinement  and  forfeiture :  *  *  *  "to 
be  confined  at  hard  labor,  under  charge  of  the  post  guard, 

for (— )  months,  and  to  forfeit (— )  dollars  per 

month  for  the  same  period." 

Form  5.  Dishonorable  discharge  and  forfeiture  of  pay 
and  allowances:  *  *  *  "to  be  dishonorably  dis- 
charged the  service  of  the  United  States,  forfeiting  all 
pay  and  allowances  due  him." 

Form  6,  Dishonorable  discharge,  forfeiture  of  pay  and 
alloioances,  and  confinement :  *  *  ^e  "to  be  dishon- 
orably discharged  the  service  of  the  United  States,  for- 
feiting all  pay  and  allowances  due  him,  and  to  be  confined 
at  hard  labor  at  such  post  {or,  in  such  penitentiary)  as 
the  reviewing  authority  may  direct,  for (—) years." 

iSee  pages  56  and  57,  and  page  74,  par.  13,  ante. 

-  Detention  of  pay  is  no  longcir  authorized  ;  and  under  the  acts  of  February 
12,  1895  (28  Stat.  L.,  655),  and  March  16,  1896  (29  Stat.  L.,  60),  pay  can  no 
longer  be  retained. 

3 By  adding  the  words  "now  due  or  to  become  due"  the  pay  rolls  will 
generally  be  simplified,  by  permitting  all  of  the  forfeiture  to  be  collected 
at  the  next  payment. 


SUBPCENA   FOR   CIVILIAN    WITNESS.        159 


SUMMONS  FOK  A  MILITARY  WITNESS. 

Fort , 

,  19—. 

To , 

Infantry. 

Sir  :  You  are  hereby  summoned  to  appear  on  the 

of ,  19 — ,  at o'clock — .  ra. ,  before  a  general  court- 
martial,  convened  at ,  by  Special  Orders,  No. , 

from ,  as  a  witness  in  the  case  of  Private  A B , 

Co. , Infantry. 

C D , 


Judge- Advocate. 


SUBPa:NAi  FOR  civile! AN  WITNESS. 

United  States  ) 

vs.  y  Subpcena. 

The  President  of  the  United  States,  to ,  greeting  : 

You  are  hereby  summoned  and  required  to  be  and 

appear  in  person  on  the day  of  ,  19 — ,  at  

o'clock  — .  m.,  before  a  general  court-martial  of  the 

United  States,  convened  at ,  by  Special  Orders, 

No. ,  Headquarters ,  dated ,  19 — , 

then  and  there  to  testify  and  give  evidence  as  a  witness 

for  the in  the  above-named  case.     And  have  you 

then  and  there  this  precept. 
Dated  at ,  this day  of ,  19 — . 

Judge- Advocate  of  the  Court-Martial. 

'  Fees  must  bo  tendered  or  paid  under  act  of  March  2, 1901,  page  122,  arUe. 


160  SCTBPCENA   DUCES   TECUM. 

SUBPCENAi  DUCES  TECUM. 

(Civilian  witness.) 


United  States  J 

lis  ^• 


Subpcena. 


The  President  of  the  United  States,  to ,  greeting  : 

You  are  hereby  summoned  and  required  to  be  and 

appear  in  person  on  the day  of  ,  19 — ,  at 

o'clock  — .  m.,  before  a  general  court-martial  of  the 

United  States,  convened  at ,  by  Special  Orders, 

No. ,  Headquarters ,  dated ,  19 — , 

then  and  there  to  testify  and  give  evidence  as  a  witness 

for  the  in  the  above-named  case;  and  you  are 

hereby  required  to  bring  with  you,  to  be  used  in  evi- 
dence in  said  case,  the  following-described  documents, 

to  wit : .     And  have  you  then  and  there  this 

precept. 
Dated  at ,  this day  of ,  19—. 

Judge-Advocate  of  the  Court-Martial. 


RETURN  OF  SERVICE. 

{Indorsement  of  preceding  ivrits.y 

United  States 

vs. 


,  19—. 

I  certify  that  I  made  service  of  the  within  subpcena 
on ,  the  witness  named  therein,  by  personally  de- 
livering to  him  in  person  a  duplicate  of  the  same  at , 

on  the dav  of ,  19 — . 


1  Fees  must  be  tendered  or  paid  under  act  of  March  2, 1901,  page  122,  ante. 

2  On  the  back  of  each  form  of  writ  are  forms  for  both  certificate  and 
affidavit. 


WARRANT   OF   ATTACHMENT.  161 


,  being  duly  sworn,  on  his  oath  states  that 

the  foregoing  certificate  is  true.  , 

Subscribed  and  sworn  to  this day  of ,  19 — . 

before  me.  ^  — , — — . 


WARRANT   OF  ATTACHMENT. 

United  States  ) 

vs.  y 

The  President  of  the  United  States,  to ,  greeting: 

Whereas, ,  of ,  was  on  the day 

of ,  19 — ,  at ,  duly  subpoenaed  to  appear  and  at- 
tend at , ,  on  the day  of ,  at o'clock 

— .  ni. ,  before  a  general  court-martial  duly  convened  by 
Special  Orders,  No. ,  dated  Headquarters  Depart- 
ment of , ,  19 — ,  to  testify  on  the  part  of 

the in  the  above-entitled  case ;  and  whereas  he  has 

failed  to  appear  and  attend  before  said  general  court- 
martial  to  testify  as  by  said  subpoena  required,  and 
whereas  he  is  a  necessary  and  material  witness  in  behalf 

of  the in  the  above-entitled  case. 

Now,  therefore,  by  virtue  of  the  power  vested  in  me, 
the  undersigned,  as  judge-advocate  of  said  general  court- 
martial,  by  section  1302  of  the  Revised  Statutes  of  the 
United  States,  you  are  hereby  commanded  and  empow- 
ered to  apprehend  and  attach  the  said ,  wher- 
ever he  may  be  found  within  the of  ,^  and 

forthwith  bring  him  before  the  said  general  court- 
martial  assembled  at ,  to  testify  as  required  by 

said  subpoena.  ^ 

Judge-Advocate  of  said 
General  Court-Martial. 
Dated , ,  19—. 

1  After  service,  as  above  indicated,  the  original  subpoena  should  bo  at  once 
returned  to  the  judge-advocate  of  the  court ;  if  the  witness  can  not  be  found, 
the  judge-advocate  should  be  so  informed. 

'State,  Territory,  or  District  where  the  court  sits. 

12915 11 


162     INTERROGATORIES   AND   DEPOSITION. 

INTERROGATORIES  AND  DEPOSITION.! 

INTERROGATORIES. 

The  United  States 


The  following  interrogatories  and  cross-interrogatories 

to  be  propounded  under  the  91st  Article  of  War,  to 

,  stationed  (or  residing)  ^  at ,  a  witness  for 

the  prosecution  (or  defense)  ^  in  the  above -entitled  case 
now  pending  and  to  be  tried  before  the  general  court- 
martial  convened  at ,  by  paragraph ,  Special 

Orders  No.  — ,  Headquarters  Department  of ,  dated 

^q j  accepted  by  the  court  in  open  session, 

'  '  ]  agreed  upon  by  both  parties  in  ad- 
the  —  having  been  given  reasonable  opportunity  to  sub- 
vance  of  the  assembling  of  the  court  and  subject  to  excep- 

mit  cross -interrogatories  ^and  are  respectfully  for- 
tions  when  read  m  court      ^    «■  ^  "  «=    ^o^  ^  u       j 

warded  to  the  convening  authority  with  the  request  that 
some  suitable  officer  may  be  designated  to  take,  or  cause 
to  be  taken,  the  deposition  of  said  witness  thereon : 

First  interrogatory :  Are  you  in  the  military  service  of 
the  United  States?  If  yea,  what  is  your  full  name,  rank, 
organization,  and  station?  If  nay,  what  is  your  full 
name,  occupation,  and  residence? 

Second  interrogatory :  Do  you  know  the  accused,  a 

in ?    If  yea,  how  long  have  you  known  him? 

Third  interrogatory : ? 

Etc. 

First  cross-interrogatory : ? 

Etc. 

First  interrogatory  by  the  Court : ? 

Etc. 
Dated  at ,  this day  of ,  19 — . 

Judge  Advocate.  President.^ 

1  See  Court-Martial  Manual,  page  37. 

2  Erase  the  word  inappropriate  to  the  case.  With  the  consent  of  the  oppo- 
site party  the  deposition  of  a  witness  residing  tvithin  the  State,  Territory, 
or  District  in  which  the  court  sits  may  be  taken  and  read  in  evidence.  A 
written  stipulation  signed  by  both  parties  should,  in  such  a  case,  be  attached 
to  this  paper  before  it  is  signed. 

3  Erase  the  line  inappropriate  to  the  case. 

*  If  taken  in  advance  of  the  assembling  of  the  court,  the  interrogatories 
should  be  signed  by  the  judge-advocate  and  the  accused  instead  of  the 
president  and  judge-advocate. 


INTERROGATORIES   AND   DEPOSITION.      163 

Headquarters  Department  of . 

,  19—. 

,  stationed  (or  residing)^  at ,  is 


hereby  designated  to  take,  or  cause  to  be  taken,  the 

deposition  of  the  said ,  a  witness  on  the  part  of 

the in  the  case  of  the  United  States  against  ■ 

,  now  pending  before  a  general  court-martial  at 

.     The  deposition,  when  taken,  to  be  sent  by 

him  to ,  the  president  of  said  court  at . 

By  command  of General . 

» 
Adjutant  General. 


DEPOSITION. 

,  the  witness  above  named,  having  been  first 

duly  swoiTi  by  me, ,  a^  ,  stationed  (or 

residing)'  at ,  doth  depose  and  say  for  full 

answers  to  the  foregoing  interrogatories,  as  follows : 

To  the  first  interrogatory : . 

Etc. 

(^Signature  of  witness.  J 

Subscribed  and  sworn  to  before  me  this day  of 

,  19—. 

3 

I, ,  the  officer  designated  to  cause  the  depo- 
sition of  the  said to  be  taken  on  the  foregoing 

interrogatories  and  cross-interrogatories,  decertify  that 
it  was  duly  made  and  taken  under  oath. 


1  Erase  the  word  inappropriate  to  the  case. 

2  Insert  official  character:  as  "  Trial  Officer  Summary  Court,"  "Notary 
Public,"  etc. 

'  The  jurat  to  bo  signed  by  the  officer  administering  the  oath,  who  will 
add  his  official  designation.  (See  Manual  for  Courts-Martial,  page  38,  par.  3.) 
If  the  oath  is  administered  by  a  Notary  Public,  his  seal  will  be  affixed  to 
the  deposition. 


164 


ACCOUNT   OF   CIVILIAN   WITNESS. 


ACCOUNT  OF  CIVI1.IAN  TVITNESS. 

The  United  States  to ,  Dr. 


19-. 

Expenses  as  witness  before  a  military  court 
convened  iinder  annexed  order. 

Dolls. 

Cts. 

From ,  19—,  to ,  19— 

For  mileage  from to and 

return,  being miles,  at  5  cents  per  mile  __.. 

For  allowance  while  in  attendance  on  said  court, 

from ,   19 — ,  to  ,   19 — ,  as 

per  judge-advocate's  certificate  hereon,  

days,  at  $1.50  per  day 

"      c3 

Total 

1  1 

From ,  19—,  to ,  19— 

i    -s 

1! 

For  actual  cost  of  travel  from to 

and  return,  as  per  memorandum  annexed 

For  actual  cost  of  meals  and  rooms  while  travel- 
ing to  and  from  eaid  court,  between  above 
dates,  inclusive, days 

^5g 

•s    a 

For  actual   cost  of  meals  and  rooms  while  in 

attendance  on  said  court,  from ,  19 — , 

to ,  19 — ,  as  per  judge-advocate's  cer- 

^        r? 

I  solemnly  swear  that  the  above  account  is  correct ; 
that  I  have  not  been  furnished  with  Government  trans- 
portation for  any  part  of  the  journey  for  which  travel 
fare  is  charged,  and  that  the  journey  was  performed 
without  unnecessary  or  avoidable  delay. 

,  Witness. 

Sworn  to  and  subscribed  before  me  at , ,  on 

this day  of ,  19 — . 


Judge- Advocate. 


Received  this day  of 

paymaster,  U.  S.  Army,  — 
account,  by  check  No. 

[In  duplicate.] 


— ,  19—,  of  Major ^ , 

dollars,  in  full  of  the  above 

on . 

,  Witness. 


ACCOUNT   OF   CIVILIAN   WITNESS.  165 

judge-advocate's  certificate. 

{On  back  of  form.) 

I  certify  that .  a  civilian,  has  been  in  attend- 
ance as  a  material  witness  from ,  19—,  to  ■ 

^  19 — ^  inclusive,  before  a  general  court-martial  duly- 
convened  at  this  place,  and  that  he  was  duly  summoned 
thereto  from . 

Judge- Advocate. 

Place, . 

Date, ,  19—. 

(Note. — If  the  witness  he  ''in  Government  employ,'' 
these  uiords  ivill  he  inserted  in  the  above  certificate  after 
the  n^ord  " civilian.") 

RULES  GOVERNING  ACCOUNTS  OF  CIVILIAN  WITNESSES. 

The  Paym  aster  General  is,  under  paragraphs  1066-1070, 
Army  Regulations,  governed  by  the  following  rules  in 
the  treatment  of  vouchers  for  travel  expenses  of  civilian 
witnesses  before  military  courts : 

1.  The  voucher  must  be  accompanied  by  a  copy  of  the 
order  convening  the  court,  with  the  original  summons 
in  the  case,  or,  if  the  attendance  was  authorized  by  mili- 
tary order,  by  the  original  order.  In  the  absence  of  the 
original  order  or  summons,  certified  copies  of  the  same 
will  be  accepted. 

2.  The  affidavit  of  the  witness  (on  face  of  voucher)  and 
the  judge-advocate's  certificate  (on  back  of  voucher)  are 
required  in  all  cases.  The  voucher  and  all  accompany- 
ing papers  must  be  in  duplicate. 

3.  The  items  of  expenditure  authorized  in  paragraphs 
1066  and  1067,  Army  Regulations,  will  be  set  forth  in 
detail  in  a  memorandum  which  will  be  attached  to  each 
voucher.  No  other  items  will  be  allowed.  The  cor- 
rectness of  the  items  will  be  attested  by  the  affidavit  of 
the  witness,  to  be  made,  when  practicable,  before  the 
judge-advocate. 


166         ACCOUNT   OF   CIVILIAN  WITNESS. 

4.  The  certificate  of  the  judge-advocate  will  be  evi- 
dence of  the  fact  and  period  of  attendance,  and  will  be 
made  on  the  voucher. 

5.  Upon  execution  of  the  affidavit  and  certificate  the 
witness  will  be  paid  upon  his  discharge  from  attend- 
ance, without  waiting  for  completion  of  return  travel. 
The  charges  for  return  journeys  will  be  made  upon  the 
basis  of  the  actual  charges  allowed  for  travel  to  the 
court.  * 

6.  A  civilian  not  in  Government  employ  duly  sum- 
moned to  appear  as  a  witness  before  a  military  court 
will  receive  §1.50  per  day  for  each  day  actually  in 
attendance  upon  the  court  and  5  cents  a  mile  for  going 
from  his  place  of  residence  to  the  place  of  trial  or  hear- 
ing, and  5  cents  a  mile  for  returning ;  but  in  Wyoming, 
Montana,  Washington,  Oregon,  California,  Utah,  New 
Mexico,  Arizona,  and  Porto  Rico  he  will  be  paid  15 
cents  for  each  mile  necessarily  traveled  over  any  stage 
line  or  by  private  conveyance,  and  in  Porto  Rico  10 
cents  for  each  mile  over  any  railway  in  such  travel.  ^ 

7.  Civilian  witnesses  in  Government  employ  will 
receive  as  follows : 

(a)  Amount  actually  paid  for  cost  of  transportation 
or  travel  fare. 

(6)  Amount  actually  paid  for  cost  of  transfers  to  and 
from  railway  stations,  not  exceeding  50  cents  for  each 
transfer. 

(c)  Amount  actually  paid  for  cost  of  one  double  berth 
in  sleeping  cars  or  on  steamers  where  an  extra  charge 
is  made  therefor. 

(d)  The  actual  cost  of  meals  and  rooms  at  a  rate  not 
exceeding  $3  per  day  for  each  day  actually  and  unavoid- 
ably consumed  in  travel  or  in  attendance  upon  the  court. 

8.  Travel  must  be  estimated  by  the  shortest  available 
usually  traveled  route;  the  charge  for  cost  of  travel 
(items  a,  b,  c)  by  established  lines  of  railroad,  stage, 

1  Par,  1067,  A.  R.,  in  accordance  with  section  848,  R.  S.,  act  Aug.  3,  1892, 
Tol.  2,  Sup.  R.  S.,  page  65,  and  act  approved  March  2,  1901,  as  to  Porto  Rico. 


ACCOUNT   OF   CIVILIAN  WITNESS.         167 

or  steamer  should  not  exceed  the  usual  rates  in  like 
cases,  the  time  occupied  to  be  determined  by  the  official 
schedules,  reasonable  allowance  being  made  for  cus- 
tomary unavoidable  detention. 

9.  The  summons,  or  order  for  attendance,  will  be 
presumed  to  show  in  all  cases,  by  indorsement  or  oth- 
erwise, if  transportation  in  kind  or  commutation  or 
rations  has  been  furnished.  Transportation  in  kind 
will,  for  any  distance  covered  thereby,  be  a  bar  to  pay- 
ment of  item  a.  Indorsements  of  transportation  fur- 
nished will  be  scrutinized  to  ascertain  if  any  part  of 
item  c  has  been  included. 

Commutation  of  rations  will  be  a  bar  to  payment  of 
item  d. 

Transportation  and  commutation  of  rations  will  be  a 
bar  to  any  payment. 

10.  No  per  diem  allowance  can  be  made  where  the 
attendance  upon  the  court  does  not  require  the  witness 
to  leave  his  station.  (This  applies  to  civilians  in  Gov- 
ernment employ. ) 

1 1 .  Compensation  to  civilians  in  or  out  of  Government 
employ,  for  attendance  upon  civil  courts,  is  payable  only 
by  the  civil  authorities. 

12.  If  a  witness  is  in  Government  employ  the  judge- 
advocate  will  state  the  fact.  If  it  does  not  appear  in  the 
certificate  or  elsewhere  in  the  papers,  and  is  not  known 
to  the  paymaster,  it  will  be  assumed  that  the  witness  is 
not  in  Government  employ. 

13.  Whenever  needed,  judge-advocates  can  procure 
blank  accounts  for  civilian  witnesses  from  any  army 
paymaster  or  from  the  Paymaster  General's  Office.  The 
accounts  may  then  be  made  out  upon  a  witness's  dis- 
charge from  attendance.  If  no  paymaster  be  present  at 
the  place  where  the  court  sits,  the  accounts,  authenti- 
cated as  above  directed,  may  be  transmitted  to  any  pay- 
master for  payment,  with  confidence  that  the  witness, 
will  receive  his  pay  without  unnecessary  delay. 


168  HABEAS   CORl>tJS — RETURN. 

form  for  special,  orders. 

Headquarters  Department  of , 

Special  Orders,  ) 

No. .         \ 

*  *  *  *  * 

3.  Recruit ,  General  Service,  U.   S.  Army, 

having  been  tried  by  a  general  court-martial  convened 

at ,  and  found  guilty  of  fraudulent  enlistment, 

in  violation  of  the  62d  Article  of  War,  was  sentenced  "to 
be  dishonorably  discharged  the  service  of  the  United 
States,  forfeiting  all  pay  and  allowances  due  him,  and 
to  be  confined  at  hard  labor  at  such  post  as  the  reviewing 
authority  may  direct,  for  the  i^eriod  of  one  (1)  year." 

The  sentence  is  approved  and  will  be  duly  executed. 

is  designated  as  the  place  of  confinement,  to  which 

place  the  prisoner  will  be  sent  under  proper  guard. 

By  command  of  Brig.  Gen. : 

Assistant  Adjutant  Genercti. 


Form  A. 
HABEAS  CORPUS  BY  UNITED  STATES  COURT. 

RETUUN  TO  WRIT. 

In  re .     {Name  of  party  held. ) 

{Writ  of  habeas  corpus — Return  of  respondent.) 
To  the .     {Court  or  judge. ) 

The  respondent.  Major ,  U.  S.  Infantry,  upon 

whom  has  been  served  a  writ  of  habeas  corpus  for  the 

production  of ,  respectfully  makes  return  and 

states  that  he  holds  the  said by  authority  of 

the  United  States  as  a  soldier  in  the  United  States  Army 
(or  "as  a  general  prisoner  under  sentence  of  general 
court-martial")  under  the  following  circumstances: 

That  the  said was  duly  enlisted  as  a  soldier 

in  the  service  of  the  United  States  at  . ,  on 


HABEAS   COtlttJS — RETtrtll^.  169 

■ ,  19 — ,  for  a  term  of years.     {If  the  offense 

is  fraudulent  enlistment  this  recital  should  be  omitted.) 

(Here  state  the  offense.  If  it  is  fraudulent  enlistment 
by  representing  himself  to  be  of  age,  it  may  be  stated  as 
follows :) 

That  on  the day  of ,  19 — ,  at , ,  the 

said ,  being  then  a  minor,  did  fraudulently  en- 
list in  the  military  service  of  the  United  States  for  the 

term  of years,  by  falsely  representing  himself  to  be 

over  twenty-one  years  of  age,  to  wit, years  and 

months;  and  has,  since  said  enlistment,  received 

pay  and  allowances  (or  either)  thereunder. 

(If  the  offense  is  desertion,  it  may  be  stated  substan- 
tially as  follows :) 

That  the  said deserted  said  service  at , 

,  on ,  19 — ,  and  remained  absent  in  desertion 

until  he  was  apprehended  at  , ,  on , 

19 — ,  by ,  and  was  thereupon  committed  to  the 

custody  of  the  respondent  as  commanding  officer  of  the 
post  of . 

That  said has  been  placed  in  confinement 

(or  "arrest,"  as  the  case  may  be),  charged  with  said 
offense,  and  formal  charges  against  him  therefor  have 
been  preferred,  a  copy  of  which  is  hereto  annexed  (or 
"are  being  prepared "),  and  that  he  will  be  brought  to 
trial  thereon  as  soon  as  practicable  before  a  court-mar- 
tial to  be  convened  by  the  commanding  general  of  the 

Department  of  (or  "convened  by  Special  Orders, 

No. ,  dated  Headquarters  Department  of ,  19—, 

a  copy  of  which  is  hereto  annexed  "). 

(If  the  party  held  is  a  geiieral  prisoner,  the  following 
paragraph  should  be  substituted  for  the  preceding  par- 
agraph:) 

That  the  said was  duly  arraigned  for  said 

offense  before  a  general  court-martial,  convened  by 
Special  Orders,  No. ,  dated  Headquarters  Depart- 
ment of , ,  19 — ,  was  convicted  thereof  by 

said  court,  and  was  sentenced  to  be ,  which  sentence 


170  HABEAS  CORPUS — RETTJUK. 

was  duly  approved  on  the day  of ,  19 — ,  by  the 

officer  ordering  the  court  {or  "by  the  officer  command- 
ing said  Department  of for  the  time  being"),  as  re- 
quired by  the  104th  Article  of  War.  A  copy  of  the 
order  promulgating  said  sentence  is  hereto  attached. 

In  obedience,  however,  to  the  said  writ  of  habeas  cor- 
pus the  respondent  herewith  produces  before  the  court 

the  body  of  the  said ,  respectfully  refers  to  the 

decisions  cited  in  the  annexed  brief,  and  for  the  reasons 
set  forth  in  this  return  prays  this  honorable  court  to 
dismiss  the  said  writ. 

Major, U.  S.  Infantry. 

Dated , , 

,  19—. 


Form  B. 
HABEAS  CORPUS  BY  STATE  COURT. 

RETURN  TO  WRIT. 

{Make  return  as  in  case  of  writ  by  a  United  States 
court,  except  as  to  last  paragraph,  for  which  substitute 
as  follows:) 

And  said  respondent  further  makes  return  that  he  has 

not  produced  the  body  of  the  said ,  because  he 

holds  him  by  authority  of  the  United  States  as  above 
set  forth,  and  that  this  court  {or  "your  honor,"  as  the 
case  may  be)  is  without  jurisdiction  in  the  premises,  and 
he  respectfully  refers  to  the  decisions  of  the  Supreme 
Court  of  the  United  States  in  Ableman  v.  Booth,  21 
Howard,  506,  and  Tarble's  Case,  13  Wallace,  397,  as  au- 
thority for  his  action,  and  prays  this  court  {or  "your 
honor")  to  dismiss  the  writ. 

Major, U.  S.  Infantry. 

Dated , , 

.  19—. 


itlABEAS   CORPUS— BRIEF.  Itl 

INSTRUCTIONS    AS   TO    llETURNS    TO   ^VRITS    OF 
HABEAS  CORPUS. 

The  following  instructions  in  regard  to  returns  under 
paragraphs  1074  and  1075,  Army  Regulations,  in  the  cases 
of  soldiers  who  have  committed  military  offenses  and 
are  held  for  trial  or  punishment  therefor,  and  of  general 
prisoners,  are  for  the  information  and  guidance  of  all 
concerned : 

1.  The  return  under  paragraph  1075,  Army  Regula- 
tions, will  be  made  in  accordance  with  Form  A  (see 
page  168,  ante),  and  will  refer,  as  in  last  paragraph  of 
that  form,  to  the  brief  of  authorities  which  follows 
these  instructions,  and  a  copy  of  that  brief  will  be  an- 
nexed to  the  return.  Should  the  court  order  the  dis- 
charge of  the  party,  the  officer  making  the  return,  or 
counsel,  should  note  an  appeal  pending  instructions 
from  the  War  Department,  and  he  will  report  to  the 
Adjutant  General  the  action  taken  by  the  court  and 
forward  a  copy  of  the  opinion  of  the  court  as  soon  as  it 
can  be  obtained, 

2.  The  return  under  paragraph  1074,  Army  Regula- 
tions, will  be  made  in  accordance  with  Form  B  (see 
page  170,  ante) ,  but  a  copy  of  the  brief  of  authorities  is 
not  intended  to  be  attached  to  the  returns  to  writ  of 
habeas  corpus  issuing  from  a  State  court. 

BRIEF  TO  BE  FILED  WITH  RETURN  TO  A  TVRTT 
OF  HABEAS  CORPUS  ISSUED  B\"  UNITED  STATES 
COURT  IN  CASE  OF  A  SOLDIER  WHOSE  DIS- 
CHARGE IS  SOUGHT  UNDER  SECTION  1117,  RE- 
VISED STATUTES. 

If  a  minor  sixteen  years  old  or  over  claims  to  be 
twenty-one  years  of  age  or  over  and  enlists  without  the 
consent  required  by  section  1117,  Revised  Statutes,  the 
contract  of  enlistment  is  not  voidable  by  the  minor,  nor 
by  his  narents  or  guardian,  if  at  the  time  of  the  filing 


1*^^  HABEAS  CORt»US — BtllEF. 

of  the  petition  the  soldier  is  held  in  pursuance  of  a  sen- 
tence of  a  court-martial,  or  any  step  has  been  taken  with 
a  view  to  bringing  him  before  such  court. 

1.  Contract  not  voidable  by  minor. 

(a)  Wlien  soldier  is  not  in  confinement. — United  States 
ex  rel.  Wagner  v.  Gibbon,  24  Federal  Reporter,  135.  In 
this  case  Wagner,  becoming  "tired  of  the  service," 
sought  his  discharge  from  the  Army  "solely  on  the 
ground  of  minority  at  the  time  of  enlistment."  This 
the  court  refused  to  grant,  holding  that  section  1117, 
Revised  Statutes,  ' '  was  made  for  the  exclusive  benefit 
of  parents  and  guardians,"  and  that,  quoting  from  the 
syllabus — 

A  minor  over  sixteen  years  of  age,  who  at  the  time  of  his  enlistment 
makes  affidavit  that  he  is  twenty-one  years  of  age,  will  not,  on  his  own  ap- 
plication, be  released  on  habeas  corpus  on  the  ground  that  he  was  a  minor  at 
the  time  of  his  enlistment,  and  that  the  written  consent  of  his  guardian  was 
not  obtained. 

(&)  When  soldier  is  in  confinement. — In  re  Morrissey, 
137  United  States,  157;  In  re  Grimley,  137  United  States, 
147 ;  In  re  Wall,  8  Federal  Reporter,  85 ;  In  re  Davison, 
21  Federal  Reporter,  618 ;  In  re  Zimmerman,  30  Federal 
Reporter,  176 ;  In  re  Hearn,  32  Federal  Reporter,  141 ; 
In  re  Spencer,  40  Federal  Reporter,  149 ;  In  re  Lawler, 
40  Federal  Reporter,  233 ;  Solomon  v.  Davenport,  87  Fed- 
eral Reporter,  318. 

In  the  Morrissey  case  the  Supreme  Court  of  the  United 
States  settles  this  beyond  question.  Morrissey,  a  minor 
of  seventeen  years  of  age,  enlisted  without  the  consent 
of  his  mother,  who  was  living.  He  deserted,  remained 
in  concealment  until  he  reached  his  majority,  and  then 
presented  himself  before  a  recruiting  officer  and  de- 
manded his  discharge  from  the  Army  on  the  ground 
that  he  was  a  minor  when  enlisted.  The  court  said  that 
the  provision  of  section  1117,  Revised  Statutes — 

is  for  the  benefit  of  the  parent  or  guardian,  *  *  *  but  it  gives  no  privi- 
lege to  the  minor.  *  *  *  An  enlistment  is  not  a  contrfict  only,  but  effects 
a  change  of  status.     It  is  not,  therefore,  like  an  ordinary  contract,  voidable 


HABEAS  CORPUS — BRIEF.       173 

by  the  infant.  *  *  *  The  contract  of  enlistment  was  good  so  far  as  the 
petitioner  is  concerned.  He  was  not  only  de  facto,  but  de  jure,  a  soldier — 
amenable  to  military  jurisdiction. 

All  the  cases  cited  are  instructive  as  illustrative  of  the 
different  circumstances  under  which  this  principle  has 
been  declared. 

In  the  Lawler  case  the  deserter  was  arrested  and  * '  held 
as  such  awaiting  trial,  which  will  be  as  soon  as  a  court- 
martial  can  be  convened  and  organized  for  that  pur- 
pose." 

In  the  case  of  Solomon  v.  Davenport,  the  deserter  was 
held  by  a  sheriff  under  a  warrant  of  a  United  States 
commissioner. 

In  the  Spencer  case  the  court  said : 

The  authorities  which  have  been  read  to  me  seem  to  establish  very  con- 
clusively this  rule — that  the  enlistment  of  a  minor  is  voidable,  not  neces- 
sarily void;  and  that  he  does  really  become  by  such  enlistment,  although 
under  age,  engaged  in  the  service  of  the  United  States,  and  subject  to  the 
power  aud  jurisdiction  of  the  military  authorities;  and,  such  being  the  case, 
the  court-martial  had  jurisdiction  to  arrest  and  try  him  for  the  charge  of 
desertion. 

2.  Contract  not  voidable  by  parents  or  guardians 
IF  the  soldier  is  held  pursuant  to  a  sentence 
OF  a  court-martial  or  any  step  has  been  taken 
with  a  view  to  bringing  him  before  such  court. 

In  re  Kaufman,  41  Federal  Reporter,  876 ;  In  re  Dohren- 
dorf,  et  al.,  40  Federal  Reporter,  148;  In  re  Cosenow,  37 
Federal  Reporter,  668 ;  In  re  Dowd,  90  Federal  Reporter, 
718 ;  Ex  parte  Anderson,  16  Iowa,  595 ;  McConologue's 
case,  107  Massachusetts,  170. 

In  the  Kaufman  case,  the  father  sought  the  discharge 
of  his  son,  who  was  held  by  the  military  authorities  and 
had  been  ordered  before  a  military  court  for  trial  as  a 
deserter.     Quoting  from  the  syllabus : 

A  minor  who  enlists  in  the  United  States  Army  upon  his  representation 
that  he  is  of  age,  and  receives  pay  and  clothing  and  afterwards  deserts  and 
is  arrested  as  a  deserter,  and  at  the  time  of  his  petition  is  held  by  the  United 
States  awaiting  trial  by  a  court-martial  for  the  crime  of  desertion,  will  not 
be  released  under  a  writ  of  habeas  corpus  upon  the  ground  that  being  a  minor 
his  enlistment  was  unlawful  and  contrary  to  the  Revised  Statutes  of  the 
United  States. 


174  HABEAS   CORPUS— BRIEF. 

In  the  Cosenow  case  the  minor  swore  that  he  was 
twenty-one  years  and  seven  months  old  at  the  time  of 
enlistment.  He  deserted,  and  at  the  time  of  the  filing 
of  the  petition  was  held  in  custody  awaiting  the  action 
of  the  reviewing  authority  on  the  proceedings  of  the 
court-martial.  His  father  sought  the  discharge  of  his 
son  on  the  ground  of  infancy  at  the  time  of  enlistment. 
The  court  refused  to  discharge  him,  holding  that  "an 
enlistment  contrary  to  law  is  not  void,  but  voidable ;" 
that  the  court-martial  had  jurisdiction  of  the  offense, 
and  the  soldier  "must  be  remanded  to  await  the  result 
of  his  trial." 

The  Dowd  case  arose  on  the  application  of  the  mother 
for  the  release  of  her  son,  who  was  held  under  sentence 
of  a  summary  court.  The  court  held,  quoting  from  the 
syllabus : 

The  enlistment  of  a  minor  in  the  Army  without  the  consent  of  hiB  parents 
or  guardian,  required  by  Kevised  Statutes,  section  1117,  is  not  void,  but 
voidable  only,  and  while  ho  remains  in  the  service  under  such  enlistment 
the  minor  is  amenable  to  the  Articles  of  War,  and  can  not  be  remanded  to 
the  custody  of  his  parents  by  a  civil  court  on  a  writ  of  habeas  corpus  while 
undergoing  a  sentence  imposed  onhimby  a  court-martial  for  ayiolation  of 
such  articles. 

In  the  Anderson  case  it  appears  that  a  minor  enlisted 
without  his  father's  consent,  and  being  held  for  trial 
before  a  court-martial  for  desertion,  his  father  sought 
his  discharge  on  habeas  corpus.  The  court  refused  to 
discharge  the  soldier,  saying  ' '  he  must  abide  by  the  deci- 
sion of  the  latter  court  (court-martial)  before  the  ques- 
tion of  the  validity  of  his  enlistment  can  be  determintd 
in  the  civil  courts  on  habeas  corpus." 

In  McConologue's  case  the  court  said : 

A  minor's  contract  of  enlistment  is  indeed  voidable  only  and  not  void, 
and  if,  before  a  writ  of  habeas  corpus  is  sued  out  to  avoid  it,  he  is  ax-rested 
on  charges  of  desertion,  he  should  not  be  released  by  the  court  while 
proceedings  for  his  trial  by  the  military  authorities  are  pending. 

Under  the  custom  of  the  service  the  parents  or  guar- 
dian of  a  minor  who  enlists  without  their  consent  can 
obtain  his  discharge  upon  application  to  the  Secretary 
of  War,  prior  to  the  commission  of  a  military  offense. 


HABEAS  CORPUS — BRIEF.       175 

Their  right  under  section  1117,  Revised  Statutes,  are 
thus  sufficiently  protected;  but  when  the  minor  has 
committed  a  military  offense  the  interests  of  the  public 
in  the  administration  of  justice  are  paramount  to  the 
right  of  the  parent,  and  require  that  the  soldier  shall 
abide  the  consequences  of  his  offense  before  the  right  to 
his  discharge  be  passed  upon.  (Digest  Opin.  J.  A.  G., 
§§  1258  and  1264,  and  notes. ) 

The  soldier  should  not  be  allowed  to  escape  punish- 
ment for  his  offense,  even  though  his  parents  assert  their 
right  to  his  services.  A  minor  in  civil  life  is  liable  to 
punishment  for  a  crime  or  misdemeanor,  even  though 
his  confinement  may  interfere  with  the  rights  of  his 
parents. 


INDEX. 


Abatement  of  pnnishment:  Page, 

for  good  conduct  in  confinement 67 

Absence : 

of  member  from  meeting  of  court ^_  22,138 

See  Department  commander. 

Absence  without  leave: 

eflfect  of  conviction  of,  on  reward  for  apprehension 47 

finding  of,  under  charge  of  desertion 43 

from  camp,  1  mile 100 

from  duty  as  company  or  hospital  cook 53 

from  fatigue,  extra,  or  special  duty 53 

from  parade,  etc.,  forms  for  charges 127 

from  parade,  etc.,  limit  of  punishment 51 

from  parade,  etc.,  offense  of 100 

from  troop,  etc.,  form  for  charge  _. 127 

from  troop,  etc.,  limit  of  punishment 50 

from  troop,  etc.,  offense  of 100 

Abuse  of  authority : 

by  noncommissioned  officer,  limit  of  punishment 54 

Accounts : 

of  witness,  form  for 164 

of  witness,  rules  governing ^ 165-167 

of  witness,  to  deposition 38 

Acconterments : 

accountability  for 95 

selling,  losing,  etc.,  form  for  charge 125 

selling,  losing,  etc.,  limits  of  punishment 49 

selling,  losing,  etc.,  offense  of 96 

Accused : 

arraignment  of 31, 140 

challenge  by,  how  allowable 27 

challenge  by,  how  recorded 139,140 

consent  of,  to  trial  by  summary  court -  75 

entitled  to  counsel  before  general  court 25 

entitled  to  have  witnesses  summoned 33 

judge-advocate,  how  far  counsel  23 

stands  mute 32 

to  be  advised  of  his  rights 23 

uniform  of,  before  court 21 

will  not  appear  in  irons . :  21 

12916 12  (177) 


178  INDEX. 

Accuser:  Page. 

can  not  convene  general  court 13 

can  act  as  summary  court 71 

challenge  of  member  on  ground  of  being 27 

should  not  act  as  judge-advocate 28 

Acquittal : 

effect  of,  on  reward  for  apprehension 47 

finding  in  case  of  virtual 44 

form  for  recording 146 

Acting  assistant  surgeon : 

ineligible  as  member  of  court 11 

Action  on  proceedings.    See  Proceedings. 

Additional  charges: 

can  not  be  introduced  after  arraignment,  etc_ 20 

Adjournment: 

daily,  signed  by  judge-advocate 24 

final,  signed  by  president  and  judge-advocate 24 

Advising  desertion : 

offense  of 102 

Alarms : 

false,  offense  of  occasioning 101 

Ammunition : 

offense  of  purchasing,  from  soldier,  etc 106 

offense  of  wasting,  selling,  etc 96 

Appeal : 

from  regimental  to  general  court 99 

Appointing  authority.    See  Convening  authority. 

Arms: 

accountability  for 95 

offense  of  casting  away 101 

offense  of  making  false  return  of 94 

offense  of  selling,  losing,  etc 90 

offense  of  selling,  losing,  etc.,  limits  of  punishment 49 

Arraignment : 

accused  and  judge-advocate  stand 31 

accused  not  to  be  in  irons  at , 21 

accused  stands  mute  at,  action  by  court 32 

additional  charges  not  introduced  after 20 

form  for  recording 140 

procedure  for 31 

Arrest : 

applications  of  officers  in 7 

breach  of,  by  officers ; 107 

general  provisions  regarding 9 

of  deserters,  reward  for - .— 47 


INDEX.  179 


Arrest— Continued.  Page, 

of  officers 6, 107 

of  soldiers 8 

protracted,  a  ground  for  mitigation 64 

Arson : 

offense  of,  in  time  of  war . 104 

Articles  of  war: 

armies  of  United  States  governed  by 93 

officers  shall  subscribe 93 

read  once  in  six  months  to  troops 118 

read  to  recruits 93 

Assault  with  intent  to  liill : 

form  for  charge 133 

limit  of  punishment 52 

Assembling  of  court: 

procedure  on . 20 

Attachment  of  witness.     See  Witness  and  Wan-ant  of  attachment. 

Attendance  of  witness.    See  Witness. 

Authentication  of  proceedings.    See  Proceedings. 

Authority : 

abuse  of,  by  noncommissioned  officers 54 

Autrefois  acquit : 

plea  of 32 

Ball  and  chain : 

as  punishment 46 

punishment  by,  in  extreme  cases  only 46 

report  of  use  to  department  commander 65 

Branding  of  soldiers : 

forbidden 113 

Breach  of  arrest : 

by  officers 107 

Bread  and  water  diet: 

confinement  on,  as  punishment 46,47 

Bribes : 

officer  taking 94 

Burglary : 

offense  of,  in  time  of  war 104 

under  62d  Article,  form  for  charge 134 

under  62d  Article,  limit  of  punishment 1 52 

Cadets.    See  Military  Academy. 


180  INDEX. 

Camp:  Page. 

introducing  liquor  into,  limit  of  punishment 53 

lying  out  of,  without  leave 99 

retainers  of,  jurisdiction  over 15 

soldiers  one  mile  from,  without  leave 100 

violence  to  persons  bringing  provisions  to 103 

Candidate  for  promotion : 

punishment  of 46 

triable  by  general  court  only 15 

Capital  crime : 

desertion  in  time  of  peace  not  a 39 

meaning  of 39 

Captured  stores: 

disposition  of 95 

Casliiering: 

meaning  of 95 

Certificates : 

penalty  for  signing  false 96 

Challenge  {of  member  of  court) : 

absent  during  evidence,  not  to  sit 28 

court  determines  validity  of 27 

grounds  for 27,28 

in  absence  of,  member  how  excused 28 

judge-advocate  not  challengeable 28 

record  in  case  of 139,140 

summary  coui-t  not  subject  to 27 

Challenge  {to  fight  duel): 

duty  to  refuse 98 

sending,  accepting,  etc 98 

upbraiding  for  refusing 98 

Chaplains: 

not  detailed  as  members  of  courts 11 

Charges: 

accompanied  by  what 19 

act  charged  under  two  or  more  forms 19 

additional 20 

consideration  of,  by  post  commander 19 

correction  of,  by  judge-advocate 23 

delay  in  trial  by  summary  court  on 72 

forms  for 125 

instructions  for  drawing 16-18 

investigation  of 19 

joint,  when 17 

prisoners  without  written,  when  released 9 

requisites  of 16 

service  of,  upon  oflBcer  arrested 7 


INDEX.  181 

Charges — Continued.  Page. 

specifications,  how  drawn >      18 

specifications,  not  in  alternative 19 

striking  out,  withdrawing,  etc 19,20 

to  show  consent  to  trial  by  summary  court 75 

to  whom  submitted , 19 

when  and  by  whom  submitted 9 

Civil  court : 

can  not  review  proceedings  of  military IS 

military,  ordinarily,  gives  precedence  to 14 

previous  convictions  by,  inadmissible 45 

CItII  crime : 

act  as  being  both  military  offense  and .-  14 

Civil  magistrate : 

delivery  of  accused  oificer  or  soldier  to 104 

Clemency : 

certain  applications  for 63 

Clothing: 

form  for  charge  for  selling 125 

limit  of  punishment  for  selling 49 

limit  of  punishment  for  losing  or  spoiling 49 

offense  of  selling,  losing,  etc 19,96 

Closed  session : 

judge-advocate  excluded 25 

Company  commander: 

arrest  or  confinement  of  soldiers  reported  to 9 

copy  of  summary  court  record  furnished  to 76 

Commanding  officer: 

disrespect  to,  limit  of  punishment 50 

disrespect  to,  offense  of 97 

instructions  to,  regarding  summary  courts 75 

may  authorize  departure  of  certain  witnesses 39 

must  investigate  charges 19 

power  to  order  court  of  inquiry 116 

refers  or  forwards  charges 19 

report  of  prisoners  to 9 

Command : 

suspension  from,  as  punishment 46 

when  different  corps  join 117 

Commands: 

ofiicers  to  keep  good  order  in 103 

Commutation  of  punishment: 

power  of  roviewinst  authority ^* 63 


182  INDEX. 

Company  cook :  Page, 

limit  of  publishment  for  absence  from  duty  as 53 

limit  of  punishment  for  drunkenness  on  duty  as 51 

Composition  of  courts-martial.    See  Courts-martial. 

Conduct  to  the  prejudice,  etc. : 

forms  for  charges 131 

instruction  regarding  charges 17 

limits  of  punishment 52 

Conduct  unbecoming,  etc. : 

form  for  charges 131 

instructions  regarding  charges  of 17 

Confinement  before  trial : 

enlisted  men  in,  how  designated 8 

general  provisions  regarding 9 

long,  aground  for  mitigation 64 

of  officers 7 

of  soldiers 8 

report  of,  to  soldier's  company  commander 9 

Confinement  after  trial : 

abatement  allowed „» 67 

enlisted  men  in,  how  designated 65 

forms  for  sentence  to 158 

general  prisoners  examined  when  released 67 

on  bread  and  water  diet 46, 47,67 

personal  eifects  of  escaped  prisoners 66 

prisoners  forwarded  to  place  of 65 

prisoners  put  in  irons,  report  made 65 

second  sentence  to,  begins  when 67 

sentence  to,  begins  when 67 

separation  of  prisoners  in 65 

solitary,  duration  of 57 

Constitution  of  courts-martial.     See  Courts-martial. 

Contempt : 

courts-martial  may  punish  for 111 

Continuance.    See  Postponement. 

ConTening  authority: 

control  of,  over  court 13 

decision  of,  as  to  number  of  members 12 

effect  of  absence  on  appointing  power 13 

of  garrison  court 76 

of  general  court 12, 13 

of  regimental  court 77 

of  summary  court 71 

prosecutor  can  not  convene  general  courts 13 

report  to,  when  court  is  below  minimum 12 

the  President  as 12 

the  Superintendent,  U.  S.  Military  Academy,  as — _-. 13 


INDEX.  183 

CoDTenin^  order.  Page. 

for  garrison  court 151 

for  general  court 137 

for  regimental  court 153 

ConTictions.    See  Previous  convictions. 

Correction  of  proceedings.     See  Revision  of  record. 

Correspondence  : 

with  the  Judge-Advocate  General; 69 

with  the  enemy 101 

Counsel  for  accused : 

argumehts  of,  oral  or  written 26 

by  whom  detailed 25 

duties  of 25 

introduction  of,  before  court 139 

judge-advocate,  how  far 23 

questions  of,  oral  or  written 26 

Courts-martial : 

all  troops  subject  to  trial  by 14 

assembling  of 20 

authority  over  charges 19 

can  not  excuse  member 28 

can  not  order  nolle  prosequi 20 

civil  courts  can  not  review  proceedings  of 13 

classification  of 12 

composition  of 11 

control  of  convening  authority  over 13 

hours  of  session  repealed 112 

inferior 12 

jurisdiction  of,  as  affected  by  act  of  accused 15 

jurisdiction  of,  derived  from  acts  of  Congress 13 

jurisdiction  of,  exclusive  over  military  offenses 14 

jurisdiction  of,  how  extended  in  time  of  war 15 

jurisdiction  of,  not  affected  by  territoriality 14 

jurisdiction  of,  over  acts  both  civil  crimes  and  military  offenses.-  14 

jurisdiction  of,  over  offenses 14 

jurisdiction  of,  over  persons 14 

jurisdiction  of,  statute  of  limitation  as  affecting 33 

jurisdiction  of,  when  ended 14 

may  punish  for  contempt 111 

object  of,  as  military  tribunal -6 

organization  of 20 

garrison  courts-martial — 

appointed  in  what  commands 76 

appointed  when 77 

composition,  etc.,  of 76 

disposition  of  proceedings  of . ^ . 70 


184  INDEX. 

Courts-martial— Continued.  Tage. 

Garrison  courts-martial — Continued. 

form  for  order  and  record 151 

limit  of  punishing  power 77, 110 

testimony,  etc.,  will  not  be  recorded 77,152 

'  General  courts^narlial — 

appeal  from  regimental  court  to 99 

closed  session  of 25 

composition  of 11 

constituted  by  whom 12,13 

disposition  of  proceedings  of 69 

form  for  order  and  record 137 

jurisdiction  of . 15 

procedure  of 21 

record  of,  copy  furnished  accused 69,116 

record  of  proceedings 59 

revision  of  record 61 

Regimental  courts-martial — 

composition,  etc.,  of 77 

disposition  of  proceedings  of 70 

form  for  order  and  record . 153 

limit  of  punishing  power 77,110 

testimony  will  not  be  recorded 77 

under  30th  Article  of  War L 99 

Summary  courts — 

accuser  can  act  as 71 

act  establishing-. 120 

composition,  etc.,  of 71 

copies  of  record,  furnished  company  commanders 76 

delay  in  trial  by 72 

discretion  as  to  trial  by 72 

general  instructions  regarding 75 

hours  of  session 75 

jurisdiction  of 72 

limit  of  punishing  power 71, 74, 110 

may  be  held  on  Sunday  in  emergency 75,76 

monthly  report  of  cases  tried,  form  for 150 

names  of  officors  who  act  as,  reported 76 

not  challengeable 27 

power  of 72 

previous  convictions  considered  by 73 

procedure  of 73 

record,  form  for 149 

report  of  cases  tried  bj',  to  be  made  monthly 70 

reviewing  authority  of. 74 


INDEX.  185 

Courts  of  Inquiry :  Page. 

authentication  of  proceedings  of 81, 117 

composition  of 80,116 

constituted  by  whom 79, 116 

form  of  convening  order 80 

how  ordered 116 

jurisdiction  of 79 

oath  of  members  and  recorder 80,116 

object  of,  as  a  military  tribunal 6 

opinion  of,  when  given 80, 117 

organization  of 80 

procedure  of 80 

record  of,  as  evidence 117 

record  of  proceedings 81 

reporter  for,  employment  of 80 

witnesses  before 80, 116 

Cowardice : 

offense  of 101 

sentence  for,  how  published 113 

Crime : 

actas  being  both  military  offense  and  civil 14 

capital,  desertion  in  time  of  peace  not  a 39 

capital,  offender  delivered  to  civil  magistrate 104 

during  rebellion,  etc 104 

officers  accused  of,  subject  to  arrest 107 

of  fraud  against  the  United  States 105, 106 

soldiers  accused  of 107 

to  the  prejudice,  etc 106 

Criminals : 

enlistment  of,  prohibited 93 

Customs  of  War : 

as  affecting  punishment 57 

as  part  of  unwritten  military  law 6 

Days: 

meaning  of  word  in  sentence 67 

Deatii,  sentence  of: 

confirmation  of 114 

suspension  of 63,115 

vote  upon 58 

Deceased  soldiers: 

disposition  of  effects  of 118 

Defects  In  proceedings.     See  Revision  of  record. 

Defense: 

how  far  assisted  by  judge-advocate ^ ^ ^ 25 


186  INDEX. 

Delay :  Page. 

in  trial  by  summary  court 73 

when  and  by  whom  granted 30 

department  commander : 

as  accuser  or  prosecutor 13 

authorized  to  convene  courts 13 

authorized  to  review  proceedings 62 

can  not  delegate  his  function  as  reviewing  authority 62 

charges  forwarded  to 19 

effect  of  absence  of,  on  appointing  power 13 

may  permit  trial  of  sergeants  by  inferior  courts IG 

report  of  irons  on  prisoner  to 65 

Deposition : 

duty  of  officer  ordered  to  obtain 37 

fees  of  civil  officer  taking 163 

form  for 162, 163 

may  be  taken  before  court  assembles -    38 

oath  to,  by  whom  administered 38 

pay  accounts  of  witness  giving 38 

procedure  to  obtain 37 

submission  to  court 38 

when  admissible 37,112,162 

when  not  admissible 37,39 

Deprivation  of  privileges : 

of  "candidate  for  promotion" 46 

Deserter : 

enlistment  of,  prohibited 93 

from  Navy  or  Marine  Corps 33 

harboring,  offense  of 102 

surgeon's  report  to  accompany  charges  against 19, 136 

to  serve  full  term 102 

who  is  apprehended,  limit  of  punishment 49 

who  surrenders,  limit  of  punishment 48 

Desertion : 

■  after  tendering  resignation . 102 

by  enlistment  in  another  regiment 102 

evidence  of,  after  plea  of  guilty 31,32 

form  for  charge  of 129 

in  time  of  peace,  not  a  capital  offense 39 

limits  of  punishment 48,49 

offense  of 101 

offense  of  advising  or  persuading 102 

previous  convictions  of 49, 56 

statute  of  limitation  for 33,114 


INDEX.  187 

Discharge,  dishonorable :  Page. 

form  for  sentence  of - - 158 

of  an  oflBcer  for  cowardice  or  fraud 113 

of  post  noncommissioned  staff  and  hospital  steward 57 

on  account  of  conviction  of  two  or  more  offenses 56 

on  account  of  previous  convictions 56 

postponement  of  date  fixed  by  sentence C4 

Discharge  from  service : 

how  made 94 

Dismissal : 

by  court-martial,  appointed  by  division  or  brigade  commander..  115 

for  cowardice,  etc.,  where  published 113 

in  time  of  peace,  sentence  confirmed 114 

of  general  officers 115 

suspension  of  sentence  of 63,115 

Disobedience  of  orders : 

involving  defiance  of  noncommissioned  officer 53 

of  a  noncommissioned  officer,  form  for  charge 132 

of  a  noncommissioned  officer,  offense  under  62d  Article 126 

of  a  sentinel,  limit  of  punishment 54 

of  an  officer,  etc.,  quelling  fray,  limit  of  punishment 50 

of  an  officer,  etc.,  quelling  fray,  offense  of 98 

of  an  officer,  form  for  charge 126 

of  an  officer,  offense  of 97 

simple  neglect  of  standing  order 126 

Disorderly  conduct  In  quarters ; 

limit  of  punishment 54 


Disorders  and  neglects : 

offenses  under  62d  Article 106 

Disposition  of  records : 

of  general  courts .^ 69 

of  inferior  courts _ 70 

Disrespect : 

regarding  President,  etc.,  offense  of . 97 

to  commanding  officer,  limit  of  punishment 50 

to  commanding  officer,  offense  of 97 

to  sentinel,  limit  of  punishment 54 

Divine  service : 

irreverent  behavior  at 102 

officers  etc.,  recommended  to  attend 102 

Double  amenability: 

in  case  of  disorder  near  post 54 

to  civil  and  military  jurisdictions 14 


188  INDEX. 

Drunkenness :  Page. 

at  guard  mounting 17 

at  post  or  in  quarters,  limit  of  punishment 53 

not  on  duty,  offense  under  62d  Article . 17 

on  duty,  form  for  charge 128 

on  duty,  limits  of  punishment 51 

on  duty,  offense  under  38th  Article.^ 17,100 

Drunkenness  and  disorderly  conduct: 

form  for  charge 132 

limits  of  punishment 53,54 

near  post  causing  conviction  by  civil  authorities 54 

Duel: 

challenge  to  fight 98 

sending,  accepting  challenge,  etc 98 

upbraiding  for  refusing  challenge ; 98 

Duty: 

conniving  at  hiring 100 

hiring 100 

Effects : 

of  deceased  officers  and  soldiers 117,118 

of  escaped  prisoners 66 

Embezzlement : 

of  United  States  property 52,106 

offense  under  62d  Article,  limit  of  punishment 52, 53 

specifications  for,  to  state  value  of  property 52 

Enemy: 

correspondence  v<rith 101 

misbehavior  before 101 

relieving,  harboring,  etc 101 

trading  with 119 

Enlistment : 

fraudulent,  definition  of 14 

fraudulent,  forms  for  charges 129, 133 

fraudulent,  limits  of  punishment 53 

fraudulent,  offense  under  62d  Article 107 

oath  of 93 

of  certain  classes  prohibited 93 

unlawful,  penalty  for  making 93 

Escape  of  prisoner: 

disposal  of  effects  of  prisoner 66 

effect  on  jurisdiction  of  court 15 

form  for  charge  for  suffering . 132 

limit  for  suffering 54 

Evidence : 

common  law  rules  of,  ordinarily  followed 42 

proceedings  of  court  of  inquiry  as..^. , ^ .^ ^_  117 


INDEX.    '  189 

Examination  of  witness.    See  Witness.  Page. 

Experts; 

employment  and  pay  of 40 

Exposure  of  person : 

limit  of  punishment 54 

False  alarms : 

penalty  for  creating ^ 101 

False  certificate: 

penalty  for  signing ; 96 

F^lse  muster: 

penalty  for  making - 94, 96 

penalty  for  signing,  etc.,  roll  containing 96 

False  report: 

by  noncommissioned  officer,  limit  of  punishment 54 

False  return: 

penalty  for  making 94 

False  swearing : 

distinguished  from  perjury 135 

limit  of  punishment 52 

Fees  of  witness.    See  Witness. 

Finding : 

in  case  of  virtual  acquittal . 44 

of  guilty  of  lesser  kindred  offense 43 

of  guilty  of  part  of  specification 43 

of  guilty  under  general  instead  of  specific  article 44 

reviewing  authority  can  not  change 44 

Fine: 

as  a  punishment 46 

See  Forfeiture  of  pay. 

Flogging: 

prohibited 46,113 

Forcing  a  safeguard : 

offense  of 104 

Forfeiture  of  pay : 

as  a  punishment 46 

can  be  made  only  in  favor  of  United  States 47 

for  irreverent  behavior 103 

for  profanity 103 

forms  for  sentences  to 158 

of  amount  paid  for  apprehension ^ 47 

remission  of  sentence 64 

Forgery : 

under  60th  Article,  limit  of  punishment -. 52 

under  62d  Article,  limit  of  punishment 52 


190  INDEX. 

Former  trial :  Page. 

plea  of » 32 

Forms : 

for  account  of  civilian  witness 164 

for  charges 125 

for  interrogatories  and  deposition 162, 163 

for  monthly  report  of  summary  court  cases 150 

for  record  book,  for  summary  court ^ 149 

for  record  of  garrison  court 151 

for  record  of  general  court 137 

for  record  of  regimental  court 153 

for  return  to  habeas  corpus  of  State  court 170 

for  return  to  habeas  corpus  of  United  States  court 168 

for  revision  of  record,  general  court 148 

for  sentences 158 

for  special  order  publishing  proceedings 168 

for  statement  of  service 136 

for  subpoena  duces  tecum 160 

for  subpoena  for  civilian  witness 159 

for  summons  for  military  witness 159 

for  surgeon's  report  on  alleged  deserter 136 

for  warrant  of  attachment 161 

Fort  Leavenworth,  Kans. : 

penitentiary  for  general  prisoners 63, 64 

Fraud : 

administration  of  oaths  in  investigation  of 30,123 

offenses  of,  under  60th  Article 105 

oflScer  dismissed  for 113 

Fraudulent  enlistment.    See  Enlistment. 

Frays : 

power  to  quell . 97 

refusing  to  obey  oflBcer,  etc.,  quelling,  limit  of  punishment 50 

Gambling: 

encouragement  of,  by  noncom.  officer,  limit  of  punishment 54 

Garrison  court-martial.     See  Courts-martial. 

Garrison  prisoners: 

who  designated  as 65 

General  and  special  orders : 

as  part  of  written  military  law 6 

publishing  proceedings 64 

General  court-martial.     See  Courts-martial. 

General  officers: 

power  of,  to  convene  courts 13 

sentences  regarding 115 


INDEX.  191 

Ueneral  prisoners:  Page. 

examined  •when  released 67 

who  designated  as 65 

Good  conduct  in  confinement: 

abatement  for 67 

Good  order: 

officers  to  keep,  in  their  commands 103 

Grievances : 

of  officers 99 

of  soldiers 99 

redress  for 99 

Guard : 

drunkenness  on,  form  for  charge 128 

drunkenness  on,  limit  of  punishment 51 

drunkenness  on,  offense  of 100 

for  prisoners  conveyed  to  place  of  confinement 66 

member  of,  drinking  wit*!!  prisoner,  limit  of  punishment 54 

prisoners  delivered  to,  charges  against 9 

prisoners  under  charge  of,  when  released 9 

quitting,  form  for  charge 128 

quitting,  limit  of  punishment 52 

quitting,  offense  of 100, 101 

Guard  duty : 

as  a  punishment,  forbidden 47 

Guard  mounting: 

drunk  at,  limit  of  punishment 51 

Habeas  corpus: 

forms  for  return  to  writ  of 168-170 

instructions  as  to  returns 35,  68, 171 

minority  as  a  ground  for,  brief 171 

officers  served  with,  action  required 35,68 

writ  issued  by  State  court 35,  68, 171 

writ  issued  by  United  States  court 35,  68, 171 

Harboring : 

deserter 102 

enemy 191 

Hard  labor : 

as  a  punishment 46 

forms  for  sentences  to 158 

power  of  inferior  court  to  award 110 

Hiring  duty.    See  Duty. 

Horse : 

limit  of  punishment  for  losing  or  spoiling 49 

limit  of  punishment  for  selling 49 

offense  of  selling,  etc 96 


19?  INDEX. 


Hospital  cook :  Page. 

limit  of  punishment  for  absence  from  duty  as 53 

Hospital  steward  {noncommissioned  officer  above  rank  of  corporal): 

arrest  of 8 

confinement  of 8 

jurisdiction  over • 15 

may  be  discharged,  but  not  reduced 57 

punishment  of 57 

Hours  of  session: 

article  prescribing,  repealed 112 

not  to  interfere  with  routine  duties 20 

of  summary  court 75 

record  of 138 

Indecent  exposure : 

limit  of  punishment 64 

Inferior  courts-martial :  ^ 

courts  so  designated 12 

disposition  of  records  of : 70 

instructions  regarding 12 

punishing  power 110 

Inquiry,  Courts  of.     See  Courts  of  inqniry. 

Insane  or  intoxicated  person : 

enlistment  of 93 

Insubordination : 

toward  noncommissioned  officer,  limit  of  punishment 53 

Interpreter: 

employed  by  order  of  court 27 

oath  of. -• 29 

pay  of 27 

record  relating  to 140 

Interrogatories  and  deposition.     See  Deposition. 

Introducing  liquor  into  camp,  etc. : 

limit  of  punishment 53 

Irons  on  prisoner : 

as  a  punishment —  4G 

removed  on  arraignment 21 

reported  to  department  commander G5 

IrrcTerent  behavior : 

at  divine  service 102 

Joint  charges : 

when  allowed 17 


INDEX.  193 

Judge- Advocate  General:  Page. 

applications  to,  for  copies  of  records 69 

correspondence  with 69 

proceedings  in  certain  cases  forwarded  direct  to 69 

revises  and  preserves  records  of  general  courts 69 

Judge-adTocate  of  court-martial: 

appointed  by  whom 20,109 

authorized  to  adm-nister  certain  oath8______ 28,112 

correction  of  charges  by 23 

duties  of 23 

new  judge-advocate,  record  regarding 60 

not  challengeable 28 

oath  of 29 

subpoenas  by,  how  sent 34 

subscribes  daily  record,  etc 24 

warrant  of  attachment  issued  by 35 

withdraws  when  court  is  closed 25 

witnesses  summoned  by 33 

Judgo-advocate  of  department: 

authorized  to  administer  certain  oaths 30,112 

custodian  of  records  of  inferior  courts 70 

Jurisdiction  of  courts-martial.    See  Gomis-mnrtial. 

Larceny: 

by  soldier  from  civilian 18 

forma  for  charges  of 130, 134 

offense  of,  in  time  of  war 104 

offense  under  G2d  Article,  limits  of  punishment 62,63 

specifications  for,  to  state  value  of  property 62 

Law  of  hostile  occupation  : 

definition  of 5 

Laws  of  the  land: 

municipal  ordinances,  part  of 104 

Leaving  post: 

form  for  ciiarge 128 

offense  of 100 

Lewd  exposure : 

limit  of  punishment 54 

Limitation,  Statute  of: 

advantage  of,  how  taken —  33 

effect  of,  on  jurisdiction 33 

Limits  of  punishment.     See  Maximum  limits  of  punishment. 

Liquor: 

introducing  into  camp,  etc.,  limit  of  punishment 53 

Log: 

punishment  by  carrying  heavy,  prohibited 46 

12115 13 


194  INDEX. 

Losing  or  spoiling:      '  Page, 

accouterments  or  clothing,  through  neglect,  limit  of  punishment-  49 

accouterments  or  clothing,  through  neglect,  offense  of 90 

horse  or  arms,  through  neglect,  limit  of  punishment 49 

horse  or  arms,  through  neglect,  offense  of 96 

Loss  of  rank : 

as  a  punishment 46 

Lying  out  of  quarters : 

offense  of 99 

Manslaughter: 

offense  of,  in  time  of  war 104 

under  62d  Article,  limit  of  punishment 52 

March : 

different  corps,  etc.,  on  the 117 

Marine  Corps: 

deserter  from 33 

officers  of,  as  members  of  courts 11 

Marking: 

as  a  punishment,  forbidden 46, 113 

Martial  lair : 

as  a  domestic  fact,  definition  of 5 

as  applied  to  the  Army,  definition  of 5 

Maximum  limit  of  punishment: 

by  whom  prescribed 48 

effect  of  previous  convictions  on 55, 56 

for  desertion 49,50 

for  offenses  in  general 55 

of  noncommissioned  officer 56 

of  soldier  convicted  of  several  offenses 56 

offenses  not  mentioned 55 

Mayhem : 

offense  of,  in  time  of  war 104 

Medical  officer : 

arrest  of 7 

report  of,  in  case  of  deserter 19 

report  of,  in  case  of  general  prisoner 67 

report  of,  form,  for 136 

Members  of  courts-martial : 

absent,  communicate  cause  to  judge-advocate 22 

absent  during  evidence,  not  to  sit 28 

assembling  of 20 

behavior  of 21,  22 

court  can  not  excuse  from  sitting 28 

duty  of  judge-advocate  to  ascertain  cause  of  absence  of 138 

liable  for  other  duty 22 


INDEX.  195 

Members  of  courts-martial— Continued.  Page. 

named  in  order  of  rank..., 21 

new  member « 60 

oath  of 28 

questions  by,  how  recorded 142 

quorum  for  general  court 12 

seating  of 21 

uniform  of 20 

votes  of,  how  given 22 

who  are  eligible  as 11 

who  believe  themselves  disqualified 28 

Member  of  guard : 

driulsing  liquor  with  prisoner,  limit  of  punishment 64 

Military  Academy : 

cadets  not  triable  by  inferior  courts , 15 

professors  not  eligible  as  members  of  courts 11 

superintendent  may  convene  courts  for  cadets 13 

Military  commission : 

object  of,  as  military  tribunal 6 

Military  discipline : 

couduct  to  prejudice  of,  forms  for  charges 131 

conduct  to  prejudice  of,  how  charged 17 

conduct  to  prejudice  of,  limits  of  punishment 52 

crimes,  disorders,  and  neglects  to  the  prejudice  of 106 

Military  gOTcrnment: 

definition  of 6 

Military  jurisdiction : 

how  8ul>divided 5 

source  of 6 

Military  law : 

definition  of 5 

sources  of 5,  6 

Military  tribunals: 

classification  of 6 

Militia: 

^  not  triable  by  officers  of  Eegular  Army 11 

officers  as  members  of  courts 11 

officers  in  United  States  service,  rank  of 117 

Minimum : 

report  if  court  is  below 12 

Minors : 

offense  of  enlisting,  without  consent  of  parents 93 

See  Habeas  corpus. 
Misbehavior  before  enemy: 

offense  of 101 


196  INDEX. 

Misconduct  in  time  of  trar :  Page. 

abandoning  post,  etc 101 

casting  away  arms,  etc 101 

changing  parole  or  watchword 101 

correspondence  with  enemy 101 

cowardice 101 

disclosing  parole  or  watchword,  etc . 101 

false  alarms 101 

forcing  safeguard 104 

intelligence  to  enemy 101 

misbehavior  before  enemy 101 

pillage 101 

quitting  colors 101 

relieving  or  harboring  enemy 101 

various  crimes..^ 101 

Mitigation  of  sentence: 

of  gt-noral  court 62,  6!i 

of  prisoner  long  confined  before  trial 64 

of  summary  court 74 

Motion  to  strike  oat: 

action  of  court  in  case  of 19 

Municipal  ordinances: 

part  of  "  laws  of  the  land" 104 

Murder : 

offense  of,  in  time  of  war 104 

Muster,  false : 

offense  of  making 94,96 

offense  of  signing,  etc.,  roll  containing 96 

Mustering : 

persons  not  soldiers  as  soldiers 94 

receiving  money,  etc.,  for 94 

Mutiny : 

beginning,  exciting,  etc :_  97 

compelling  commander  to  surrender 101 

failing  to  report  and  suppress 97 

Navy: 

deserter  from 33 

Neglect  of  duty : 

by  sentinel,  limit  of  punishment 54 

causing  damage  to  public  property 96 

form  for  charge 131 

in  failing  to  care  for  captured  property 95 

in  failing  to  surrender  criminals 104 

to  the  prejudice  of  good  order,  etc 106 


INDEX.  197 

New  member:  Page. 

if  evidence  in,  not  to  sit 28 

record  regarding 60 

Noisy  or  disorderly  conduct  in  quarters : 

limit  of  punisliment 54 

Nolle  prosequi: 

court  can  not  order 20 

judge-advocate  can  not  enter 23 

Noncommissioned  officer : 

abuse  of  authority  by,  limit  of  punishment 54 

arrest  by,  under  24th  Article 97 

arrest  of 8 

confinement  of 8 

disobedience  of  orders  of,  charged  under  62d  Article 126 

disobedience  of  orders  of,  form  for  charge 132 

disobedience  of  orders  of,  limit  of  punishment 53 

encouraging  gambling,  limit  of  punishment 54 

insubordination  to,  limit  of  punishment 53 

jurisdiction  over,  by  general  court 15 

jurisdiction  over,  by  inferior  court 16,53 

limit  of  punishment  of 56 

making  falsa  report,  limit  of  punishment 54 

punishments  for 46 

reduction  of,  by  summary  court 74 

reduction  of,  post  noncommissioned  staff,  etc 57 

using  threatening  or  insulting  language  to 53 

using  violence  to,  etc.,  when  quelling  quarrel 50 

Oaths: 

court  must  be  sworn  at  each  trial 28 

for  purposes  of  military  administration 30, 112 

in  investigation  of  frauds,  etc 30,123 

of  enlistment 93 

of  members,  judge-advocate,  etc.,  of  courts-martial 28,29 

of  members,  recorder,  etc.,  of  courts  of  inquiry 80,116 

procedure  during  administration  of 28 

profane,  penalty  for  using 103 

to  deposition 38 

Objection : 

to  question  how  recorded 142 

Offense : 

act  as  both  civil  crime  and  military 14 

against  person  or  property  of  civilian 104 

joint  charges  for 17 

jurisdiction  as  regards 15 

no  person  tried  twice  for  same 113 


198  INDEX. 

Offense— Continued.  Page. 

not  capital  and  to  the  prejudice,  etc 106 

ordinary,   limit  of  punishment  for 48 

penitentiary ^_  48,113 

statute  of  limitation  for 33, 113 

Officer: 

charged  with  crime  to  be  arrested C,  107 

in  arrest  furnished  copy  of  charges , 7, 108 

jurisdiction  over  retired ..-  14 

meaning  of  word  in  Articles  of  War 93 

retirement  of.     See  Retirement  of  officers. 

to  keep  good  order  in  his  command 103 

Officer  of  day : 

duties  respecting  prisoners  and  charges . 9 

Orders : 

convening.    See  Convening  order. 

general  and  special  publishing  proceedings 65 

neglect  to  comply  with  standing 126 

of  a  noncommissioned  officer,  disobedience  of 120, 131 

of  an  officer,  disobedience  of 97 

of  an  officer,  disobedience  of,  form  for  charge 126 

trials  by  summary  court  not  published  in 73 

Organization : 

of  courts-martial 20 

Pardon : 

by  the  President 62 

by  the  reviewing  authority 62, 74, 115 

of  penitentiary  prisoners 62 

Parole : 

penalty  for  changing 101 

Pay: 

false  certificate  relating  to,  penalty  for  signing 96 

forfeiture  of,  as  a  punishment 46 

forfeiture  of,  only  in  favor  of  United  States 47 

of  civilian  witness,  giving  deposition 38 

of  civilian  witness 40,122 

of  civilian  witness,  tender  of . 34,40,122 

of  interpreter 27 

of  officer,  suspension  of 113 

of  reporter 26 

of  soldier  awaiting  sentence 64 

of  soldier  can  not  be  assigned  by  sentence 47 

of  soldier,  detention  and  retention  not  authorized 158 


INDEX.  199 

Pay  Department:  Page. 

civilian  witness  paid  by 37,41,122,1(57 

form  of,  for  account  of  civilian  witness 164 

instructions  regarding  payment  of  witness 165 

interpreter  and  reporter  paid  by 26, 27 

Penitentiary : 

clemency  for  prisoner  confined  in 62 

confinement  in,  limit  of 47 

confinement  in,  offenses  punishable  by 47,48,113 

erroneously  designated  in  sentence 63 

for  military  prisoners,  at  Fort  Leavenworth,  Kans 64 

sentence  to  confinement  in,  mitigation  of 62 

sentence  to  confinement  in,  what  to  state 58 

sentence  to  confinement  in,  when  legal 58 

unless  sentence  authorizes,  confinement  in,  illegal 63 

when  department  commanders  may  designate 63 

Perjury : 

false  swearing  distinguished  from 135 

form  for  charge 135 

limit  of  punishment , 52 

Persuading  soldier  to  desert: 

limit  of  punishment 52 

offense  of 102 

Plea: 

accused  stands  mute 32,112 

of  guilty,  statement  inconsistent  with 32 

of  guilty,  testimony  after 32 

special,  of  second  enlistment 33 

special,  of  statute  of  limitation 33 

special,  procedure  in  case  of 33 

special,  to  the  jurisdiction,  etc 32 

Post: 

abandoning,  etc lOl 

sentinel  sleeping  on  or  leaving 100 

sentinel  sleeping  on  or  leaving,  forms  for  charges 128 

Post  commander : 

charges  laid  before  the 10 

charges  usually  presented  to,  by  old  officer  of  day 9 

determines  when  and  what  cases  go  to  summary  court 72 

forwards  chatges  for  serious  offenses 19 

forwards  completed  proceedings  of  certain  courts 70 

furnishes  company  commanders  copies  of  summary  court  record.  76 

furnishes  detail  to  execute  warrant  of  attachment 35 

may  use  discretion  regarding  trial  for  minor  offenses 75 

must  act  as  summary  court  in  certain  cases 71 

must  personally  investigate  charges  forwarded 19 

refers  charges  for  minor  offenses  to  summary  court 19 

reports  number  of  cases  tried  by  summary  court 70 


200  INDEX. 

Post  noncommissioned  staff:  l^age. 

may  be  discharged  but  not  reduced 57 

unless  they  object,  may  be  tried  by  inferior  courts 16, 57 

See  also  Noncommissioned  officer. 

Postponement : 

application  for,  when  made 30 

extended  delay  wanted 31 

on  account  of  absent  witness 30 

Post  return : 

officers  who  act  as  summary  court,  reported  on 7(5 

Precedence : 

mllittvry  ordinarily  gives,  to  civil  court 11 

President  of  a  court -martial: 

duties  of 22 

the  officer  highest  in  rank  on  court 22 

President  of  the  United  States: 

as  confirming  authority C2 

as  convening  authority 12 

as  reviewing  authority 62,  63 

limits  of  punishment  prescribed  by , 48 

may  order  courts  of  inquiry 110 

must  appoint  court  in  certain  cases 13 

l)ardoning  power  of 02 

proceedings  of  courts  appointed  by,  forwarded  to  Secretary  of 

War 09 

proceedings  of  courts  to  be  confirmed  by,  forwarded  to  Judge- 
Advocate  General 09 

using  contemptuous  words  regarding 97 

Previous  convictions: 

by  civil  court,  inadmissible 45 

by  courts-martial,  evidence  of 45,55 

consideration  of,  by  general  court 19 

consideration  of,  by  summary  court 73 

effect  on  punishment 45, 55 

evidence  of,  how  recorded 110,149 

evidence  of,  submitted  with  charges 19,55,73 

evidence  of,  when  admissible 55 

evidence  of,  when  received  by  court 45 

meaning  of 44 

not  limited  to  those  for  similar  offenses 4'> 

proper  evidence  of 45,55 

Prisoners : 

Abatement  allowed , 67 

confinement  of,  after  trial 05 

confinement  of,  before  trial 8 

<>m)nsAl  for - 25 


Prigoners— Contiuued.  Page. 

deceased,  effects  of ^ —  118 

duty  of  oflQcer  receiving 9 

escaped,  effects  of . 66 

forwarded  to  place  of  confinement ._  65 

general,  physically  examined  when  released _, 67 

not  to  be  arraigned  in  irons . 21 

penitentiary,  clemency  for , 62 

placed  in  irons,  report  regarding 65 

releasing  without  authority,  offense  of — _ 107 

report  of,  when  and  by  whom  made 9 

suffering,  to  escape,  form  for  charge 132 

suffering,  to  escape,  limit  of  punishment  for 54 

when  to  be  separated 8,9 

without  charges  against,  when  released 9 

Procedure  of  courts-martial.    See  Courts-martial. 

Proceedings  of  court-martial : 

action  on,  by  reviewing  authority 61 

application  for  copy  of . 69 

appointed  by  the  President 69 

authentication  of 24, 59 

communications  relating  to 69 

general,  revised  by  Judge-Advocate  General 69 

general,  where  filed  and  kept 69 

inferior,  where  filed  and  kept 70 

orders,  general  and  special,  publishing 65 

orders,  publishing,  how  dated 64 

requiring  confirmation  by  the  President 62,69 

See  also  Record  of  proceedings. 

Proceedings  of  courts  of  inquiry : 

authentication  of 117 

record  of,  as  evidence 1 17 

Profanity : 

penalty  for  using 103 

Professor,  United  States  Military  Academy: 

ineligible  as  member  of  court , 11 

Prosecutor : 

can  not  convene  general  court 13 

Provisions : 

violence  to  persons  bringing,  to  camp 103,104 

Public  stores: 

taken  from  enemy,  secured  for  United  States 95 

Punishment: 

ball  and  chain 46 

branding  prohibitcil 46,113 

by  carrying  heavy  log 46 


^0^  IIJDEX. 

Punishment— Continued.  Page. 

discretionary  or  fixed ; 46 

effectof  previous  convictionH  on 55 

flogging  forbidden 46,113 

for  contempt  of  court 111 

forfeiture,  in  favor  of  United  States  only 47 

for  oflBcers 46 

for  soldiers w. 46 

guard  duty,  as,  forbidden 47 

imprisonment  beyond  term  of  enlistment 14,121 

limits  of.     See  Maximum  limits  of. 

of  post  noncommissioned  staff  and  hospital  stewards 57 

proper  amount  of -. 46 

penitentiary 47,48,113 

power  of  reviewing  authority  respecting 63 

solitary  confinement 47,57 

substitutions  for  prescribed 57 

tattooing  forbidden 46, 113 

Quarrels : 

authority  to  quell 97,98 

refusing  to  obey  noncom.  officer  quelling,  limit 50 

Quarters : 

lying  out  of,  without  leave 99 

Quitting  guard: 

form  for  charge 128 

limit  of  punishment 52 

offense  of 101 

Quorum: 

for  general  court 12 

Rank: 

loss  of  relative,  as  punishment 46 

of  members  of  courts 21 

of  militia  officers  on  duty  with  regulars 117 

of  regular  and  volunteer  officers 117 

suspension  from 46 

Itape : 

offense  of,  in  time  of  war 104 

Recommendation  to  clemency : 

not  to  be  embraced  in  sentence 61 

who  should  sign 61 

Record  of  proceedings : 

accurate,  to  be  kept 59 

accused  entitle  to  copy  of 116 

application  for  copy  of 69 

authentication  of 24,59, 117 

copyable  ribbon  to  be  used 59 


INDEX.  S03 


Record  of  proceedings— Continued.  Page. 

daily,  subscribed  by  judge-advocate 24,59 

disposition  of 69 

documents  made  part  of 145 

forms  for.     See  Forms. 

forwarded  to  reviewing  authority 24 

hours  of  session  noted  in '. 138,148,151 

must  contain  a  complete  history  of  case 59 

of  closed  session CO 

of  summary  courts,  copies  furnished 76 

presence  of  members,  how  recorded 138 

previous  convictions,  evidence  of,  recorded 146, 149 

reading  of  record  of  preceding  day 60,143 

recommendation,  where  recorded 61 

revision  of 61 

statement  of  accused,  when  written,  signed,  etc 146 

statement  of  service — notpart  of  record 60 

See  also  Proceedings  of  courts-martial. 

Recruits: 

articles  of  war  to  be  read  to 93 

Redress  of  wrongs : 

of  citizens . 103 

of  officers 99 

of  soldiers 99 

Reduction  to  ranlis : 

as  a  punishment 46 

by  summary  court 74 

form  for  sentence  for 158 

in  case  of  previous  convictions 56 

of  first-class  privates  of  Engineers  and  Ordnance 56 

prohibited  as  to  post  noncommissioned  staff  and  hospital  stewards .  57 

Regimental  courts-martial.     See  Courts-martial. 

Regulations : 

part  of  written  military  law 6 

Relieving  the  enemy: 

offense  of 101 

Remission : 

of  forfeiture 64 

of  sentence 62, 74, 115 

Reporter: 

how  authorized 26 

in  special  cases 26 

no  compensation  for,  if  in  Government  service 27 

oath  of 29 

pay  of 26 

sworn  in  each  case 29 


S04  INDEX. 

Report,  false :  Pag:e. 

by  iioucommissioned  officer,  limit  of  punishment 54 

Report  of  sammary  court  cases : 

form  for 150 

forwarded  monthly 70, 121 

where  filed 70,121 

Report  of  surgeon  on  deserter: 

form  for J36 

Reprimand : 

as  a  punishment 46 

Reproachful  language: 

penalty  for  using 98 

Retainers  to  camp : 

jurisdiction  over 15 


Retired  officers : 

ineligible  as  members  of  courts 11 

jurisdiction  over 14 

Retired  soldiers : 

jurisdiction  over 14 

Retirement  of  officers : 

on  fiuding  of  retiring  board.     See  Retiring  boards. 
On  promotion  examination  (act  of  October  1,  1890) — 

disability  in  line  of  duty,  with  highi-r  rank 89,92 

finding  by  board 89 

finding  of  board,  action  on 92 

lino  of  duty,  meaning  of 89 

record,  authentication  of 92 

Retiring  hoards : 

challenge  forcause 83,  85 

constitution  and  composition 82 

finding 86 

finding,  action  on 86,  87 

finding,  conclusive 87 

form  for  order  and  record 154 

hearing,  right  of  officer  to 82 

oath  of  members 83 

oath  of  recorder 84 

powers  of 84 

procedure  of 85 

proceedings,  record  of » 164 

See  Retirement. 

Retreat : 

failing  to  retire  at,  ofTense  of ,  ...,  „ 100 


INDEX.  205 

Retams :  Page. 

false,  penalty  for  making 94 

of  regiments,  etc.,  made  monthly 94 

penalty  for  not  making 94 

BeTiewing  anthority: 

action  of  the  President  as 62,63 

approval  of  sentence 61 

can  not  change  finding .  44 

can  not  change  sentence 63 

can  not  delegate  authority 62 

can  not  increase  punishment  awarded 63 

can  not  postpone  sentence  of  dishonorable  discharge 64 

may  change  place  of  confinement . 63 

may  direct  revision  of  record ; 61 

mitigation  by 62,74,115 

mitigation  by,  for  long  confinement  before  trial 64 

of  garrison  court. 77 

of  general  court 62 

of  regimental  court 77 

of  summary  court 74 

orders  of,  publishing  proceedings 65 

orders  of,  remitting  forfeiture 64 

pardoning  power  of 62 

buspension  of  sentence  by 63 

Bevised  Statutes: 

certain,  part  of  written  military  law 6 

section  1343,  as  to  spies 118 

sections  5306  and  5313,  as  to  trading  with  enemy 118, 119 

Revision  of  record : 

by  whom  directed 61 

can  only  be  made  by  court . . 61 

form  for 148 

Reward  for  apprehension : 

when  stopped  against  soldier's  pay 47 

Bobbery : 

offense  of,  in  time  of  war 104 

to  the  prejudice  of,  etc.,  limit  of  punishment  -• 52 

Safeguard : 

penalty  for  forcing 104 

Sale  of  victuals,  etc. : 

Duty,  etc.,  upon  or  interest  in 96 

Seating  of  court: 

arrangement  of  seats 21 

members  sit  in  order  of  rank 21 


206  INDEX. 

Secretary  of  War :  Page. 

application  for  clemency  forwarded  to ()2 

applied  to  when  expert  witnessess  are  neccssarj- 40 

approval  of,  for  confinement  in  State  penitentiary 64 

certain  proceedings  forwarded  direct  to 69 

Sedition: 

beginning,  exciting,  etc 97 

failure  to  report  or  suppress 97 

Selling  clothing,  etc.    See  Clothing,  etc. 

Sentence : 

abatement  of,  for  good  conduct G7 

approval  by  reviewing  authority 61 

confirmation  by  the  President 62 

contemplating  payment  of  stated  sum 59 

date  of  commencement  of 64,67 

dishonorable  discharge,  effect  on  unserved  confinement 67 

forfeiture  for  certain  number  of  months J.9 

forms  for 158 

imiHjsing  tours  of  guard  duty,  forbidden 47 

in  excess  of  legal  limit 64 

meaning  of  word  days  in 67 

mitigation  for  confinement  before  trial 64 

not  operative  before  confirmation 64 

of  an  officer  for  cowardice  or  fraud 113 

of  death,  confirmation  of 114 

of  death,  suspension  of 6. J,  115 

of  death,  v.  te  upon 58,113 

of  dismissal  in  time  of  peace 114 

of  dismissal  in  time  of  war 115 

of  dismissal,  suspension  of 63 

pardon  or  mitigation  of 62,  74, 115 

penitentiary  erroneously  designated  in 63 

procedure  when  awarding 58 

punishment  discretionary,  limit  ascertained  58 

recommendations  not  embraced  in 61 

respecting  general  officers _  115 

reviewing  authority  can  not  change 63 

second,  begins  when 67 

to  confinement  at  post 58 

to  confinement,  begins  when 64,67 

to  confinement,  in  penitentiary  for  over  one  year 64 

Sentinel: 

allowing  prisoners  to  obtain  liquor,  limit  of  punishment 54 

disclosing  or  changing  watchword 101 

disrespect  to,  limit  of  punishment ...  54 

drinking  with  prisoner,  limit  of  punishment 54 

leaving  post  before  being  relieved ,_      100 


INDEX.  207 


Sentinel — Continued.  Page. 

quitting  post  to  pillage 101 

i-esisting  or  disobeying,  limit  of  punishment 54 

sleeping  on  post,  form  for  charge 128 

sleeping  on  post,  offense  of 100 

suffering  prisoner  to  escape,  form  for  charge 132 

suffering  prisoner  to  escape,  limits  of  punishment 54 

Soldier: 

charged  with  crimes  to  be  confined 107 

effects  of  deceased,  disposition  of 118 

jurisdiction  over  retired 14 

meaning  of  word  in  Articles  of  War 93 

Solitary  confinement: 

limit  of 47,57 

Special  orders :     See  General  and  special  orders. 

Specification : 

initructions  for  drawing 18 

Spy: 

confirmation  of  sentence  of 114 

jurisdiction  over 15 

statute  relating  to 118 

Staff  officer: 

as  summary  court 71 

Standing  mute.    See  Plea. 

Standing  order: 

neglect  to  comply  with 126 

Statement : 

inconsistent  with  plea 32 

record  of 145 

Statement  of  service : 

form  for 136 

not  part  of  record , 60 

to  accompany  charges 19 

Statute  of  limitation.    See  Limitation,  Statute  of. 

Stores : 

accountability  for  military 95 

military,  lost,  spoiled,  etc 96 

public,  taken  from  the  enemy , , 95 

Striking  superior  officer: 

form  for  charge 126 

offense  of ,„.,=-==.^^„„,-.-,^ 97 


208  INDEX. 

Subpoena  (or  Summons) .  Page. 

by  ciTil  court __. 39 

forms  for .     159, 160 

officer  or  soldier  receiving ^ 39 

proof  of  service 35 

sentthrough  military  channels 34 

fSentwith  interrogatories 37 

service  of 34 ,35 

Substitution  of  punishment : 

rule  for 57 

Suffering  prisoners  to  escape: 

forms  for  charges 132 

limits  of  j.unishment 54 

Summary  court :    See  Courts-martial. 

Sunday: 

trials  on,  by  summary  court 76 

Superintendent,  U.  S.  Military  Academy: 

convenes  courts  for  trial  of  cadets 13 

Surgeon : 

acting  assistant,  ineligible  as  member  of  court 11 

examines  general  prisoners  on  release G7 

report  of,  to  accompany  charges 19 

report  of,  to  accompany  charges,  form  for 136 

Surrender : 

compelling  commander  to 101 

Suspension : 

as  a  punishment 46 

from  rank  and  command 46 

of  pay  and  emoluments 113 

of  sentence  of  death  or  dismissal 02,  63, 114, 115 

Tattooing: 

as  a  punishment,  forbidden 46,113 

Territoriality : 

as  affecting  jurisdiction 14 

Testimony : 

corrections  in 60,142 

reading  of 60,142 

Tlireatening  and  insulting  language: 

limit  of  punishment  for  using,  to  noncom.  officer 53 

Trading  with  the  enemy: 

statutes  relating  to 118, 119 


INDEX.  5^09 

Trial :  Page- 
delay  in,  by  summary  court 72 

for  officers  summarily  dismissed 14 

hours  of.     See  Hours  of  session. 

on  Sunday,  by  summary  court 75 

postponement  of 30,112 

second,  for  same  offense ; 113 

Typewriter : 

copyable  ribbon  to  be  used  in  court-martial  records 59 

Uniform : 

of  accused • —  21 

of  judge-advocate 20 

of  members  _ 20 

of  military  witnesses 21 

Tictuals,  etc.: 

duty  upon  or  interest  in 96 

Voire  dire: 

examination  on 27,139 

Volunteers : 

officers  of,  as  members  of  court 11 

regular  officers  can  not  try 11,109 

Vote: 

method  of  taking 22 

tie 22 

upon  death  sentence 58,113 

Warrant  of  attachment : 

by  whom  issued 35 

force  necessary  to  execute : 35 

form  for 161 

officer  executing,  served  with  writ  of  habeas  corpus 35  _ 

procedure  in  issuing 35, 3G 

summary  court  can  not  issue 72 

Watchword: 

penalty  for  disclosing  or  changing j. 101 

Witness : 

attachment  of.     See  Warrant  of  attachment. 

attendance  of,  civilian,  how  procured 34 

attendance  of,  in  capital  or  special  cases 39 

attendance  of  military,  how  procured 39 

attendance  of,  without  State,  etc 37 

civilian,  refusing  to  appear  or  testify,  punishable 36,40, 122 

depai'ture  of 39 

deposition  of.     See  Deposition. 

examination  of,  manner  of 42 

examination  of,  rules  to  be  followed 42 

1291.') 14 


.^10  INDEX. 

Witness — Continned.  Page. 

examination  of,  witnesses  separated 42 

experts,  employment  and  pay  of 40 

fees  of,  before  civil  court 42 

fees  of,  certificate  of  attendance 42 

fees  of  civilian,  in  Government  employ 41 

fees  of  civilian,  not  in  Government  employ 41 

fees  of  civilian,  payment  or  tender  of 34,40,122 

fees  of,  form  for  accounts 164 

fees  of,  instructions  regarding 165 

oatU  of 29 

privilege  of 37, 42, 122 

uniform  of 21 

Wounding: 

with  intent  to  kill,  etc.,  in  time  of  war 104 

Wrongs.     See  Redrean  of  wrongs. 


YB  24589 


